Download Advocacy of the Establishment of Mental Health Specialty Courts in

Advocacy of the Establishment of Mental Health
Specialty Courts in the Provision of Therapeutic
Justice for Mentally Ill Offenders
LeRoy L. Kondo*
I.
INTRODUCTION
In Florida, a mentally ill homeless man was arrested for shoplifting an ice cream sandwich that cost $1.16.
He was imprisoned
because he lacked the $25 bail necessary for release.' Laurie Flynn,
Executive Director of the National Association for the Mentally Ill
(NAMI) notes, "Prisons and jails have become the mental hospitals of
the 1990s.,,2 One observer states, "Our jails, whether we like it or not,
are becoming our largest mental-health facilities." 3 Another comments, "Most of the people I see [in jails] don't belong here. Many of
these people would have been in a state hospital years ago."4 This
Article advocates the creation of mental health specialty courts in
* Loyola Law School, Los Angeles, J.D. candidate 2001, Henry Yuen Fellowship Award;
Stanford University, National Research Service Award postdoctoral fellow; University of California, San Francisco, Ph.D. Interested individuals may contact the author via e-mail at
[email protected]. The author expresses gratitude to Supervising Judge Harold E. Shabo for
his mentoring while the author served as a judicial extern in the Mental Health Departments of
Los Angeles County Superior Court [hereinafter Los Angeles County MHCT]. Invaluable support and review were provided by Professors Jan Costello, Scott Wood, and Sande Buhai. This
Article is dedicated to the memories of Kosan, Choyei, and Tatsu.
1. See Bob LaMendola, South Florida Hospital Aims to Break Crime Cycle of Mentally Ill
Homeless, SUN-SENTINEL (Ft. Lauderdale), Nov. 24, 1998, at B3.
2. Mentally Ill Need More Than Cells: Jails and Prisons are Ill-Equipped to Help Disturbed
Inmates, DAYTON DAILY NEWS, July 18, 1999, at 12B.
3. Aimee Howd, Trapped Between Law and Madness, 14 INSIGHT MAG., Sept. 14, 1998,
available in 1998 WL 9105794 (noting that while Washington D.C.'s law enforcement has an
operative jail service program for mentally ill patients, once jail inmates are released, there is no
adequate system for ensuring continuation of needed medication). See also Henry J. Steadman,
Diversion of Mentally Ill Persons from Jails to Community-Based Services: A Profile of Programs,
85 AM. J. PUB. HEALTH 163 (1995) ("[Ilt is clear that there are far fewer public sector mental
health beds available across the United States and that there are large numbers of persons with
mental illnesses in US [sic] jails who require appropriate treatment.').
4. Jacqueline Marino, Warped Justice: Jails Have Become Our New Mental Hospitals,
CLEV. SCENE, Aug. 12, 1999, at 1.
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order to divert mentally ill offenders from the criminal justice system
(i.e., prisons, jails) into treatment, consistent with the principles of
therapeutic jurisprudence.
Mentally ill offenders are often inextricably trapped in a "revolving door" of petty crime, incarceration, release, homelessness, and reNAMI reports "at least seven percent of all jail
imprisonment.'
inmates and 14 percent of all prison inmates suffer from schizophrenia, bipolar disorder, or major depression. On any given day,
there are roughly 210,000 persons with severe mental illnesses incarcerated in federal and state jails and prisons. '"6 Furthermore, about
40-50% of the estimated two million homeless Americans--often an
"invisible" and abandoned element of society-are severely mentally
disordered In contrast, only one-fourth of the nation's mentally ill
5. David Fleshier, Jenne: Treat the Mentally Ill, Don't Jail Them, SUN-SENTINEL (Ft. Lauderdale), Jan. 30, 1998, at 1B, available in 1998 WL 242972. See also Good Morning America:
Efforts to Keep the Nonviolent Mentally Ill Out of Jail (ABC television broadcast, Jan. 26, 2000)
[hereinafter Good Morning America I]. Mrs. Raphael is the mother of Jamie DiMarco, a schizophrenic patient who "has been in and out of prison for the last 25 years," and "shuttled from
doctors to judges to jails and back again for nonviolent crimes like trespassing and disturbing the
peace." Id. She says "[Jamie's] life has been so terrible and tormented that at times he must feel
like dying.... When they release you back on the street, you're again homeless, and without
treatment." Id. See also Leona L. Bachrach, What We Know About Homelessness Among
Mentally Ill Persons: An Analytical Review and Commentary, in TREATING THE HOMELESS
MENTALLY ILL: A REPORT OF THE TASK FORCE ON THE HOMELESS MENTALLY ILL 11 (H.
Richard Lamb ed., 1992). Bachrach quotes an anonymous chronic mentally ill woman who
states,
Someone who has been on the streets and is homeless and jobless and who has a
disability, who doesn't have a car or food or a friend, and doesn't know what to do
about the situation, is in pain .... If you talk to people who have been there, they will
tell you they were alone and afraid. So afraid that help doesn't look like help, but like
more torture.
Id.
6. National Alliance for the Mentally Ill (NAMI), The Criminalizationof People with Mental Illness-NAMI's Position (visited Oct. 15, 2000) <http://www.nami.org/update/
umitedcriminal.html> [hereinafter NAMI, Criminalizationof Mentally Ill].
7. See National Coalition for the Homeless, NCH Fact Sheet #2: How Many People
Experience Homelessness? (last modified Feb. 1, 1999) <http://nch.ari.net/numbers.html>. In
1999, the National Law Center on Homelessness and Poverty noted that "over 700,000 people
[are] homeless on any given night, and up to 2 million people... experience homelessness
during one year." Id. (citation omitted). The Clinton Administration's Priority Home! The
Federal Plan to Break the Cycle of Homelessness estimated that a median of 7 million homeless
Americans existed in the U.S. from 1985-1990. Id. This figure is based on Dr. Bruce Link's
1990 national telephone survey. Id. Dr. Link's subsequent 5-year survey enumerated that 12
million adults had experienced homelessness at some point in their lives. Id. The widely varying
estimates in the number of homeless Americans can be explained by differences in both the
methodology used and the populations measured. Id. See also H. Richard Lamb, Involuntary
Treatment for the Homeless Mentally Ill, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 269, 277
(1989) (observing that "the estimates of the seriously mentally ill in the urban homeless population range from 25 to 50 percent, and that the true percentage is most likely in the upper end of
that range."). See generally TREATING THE HOMELESS MENTALLY ILL (H. Richard Lamb ed.,
2000]
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(about 70,000 persons) currently reside in public psychiatric
hospitals.'
Thus, crowded jails and prisons are often utilized by society as
"surrogate mental hospitals" to house nonviolent mentally ill offenders and the distraught homeless population, often convicted of
nuisance crimes such as "urinating in alleys, sleeping at airports, [or]
harassing people in front of convenience stores.' ' 9 Ostensibly, this
situation is the result of a backlash created by nationwide attempts to
remove mental patients from institutionalization." More insidiously,
Reagan Administration cutbacks resulting in loss of Supplemental
Social Security Income benefits have contributed to the homelessness
dilemma, indirectly leading to the increased criminalization of the
mentally ill.1' Jails have been criticized as being called "high-expense
1992); Bruce Link et al., Life-Time and Five-Year Prevalenceof Homelessness in the United States,
AM. J. PUB. HEALTH, Dec. 1994; Bruce Link et al., Life-Time and Five-Year Prevalence of
Homelessness in the United States: New Evidence on an Old Debate, 65 AM. J. ORTHOPSYCHIATRY 347-54 (1995); Felicity Barringer, U.S. Homelessness Is Far Below Estimates, N.Y.
TIMES, Apr. 12, 1991, at All (noting underestimates of homelessness because of difficulties in
enumerating this population); Wrong Answer, L.A. TIMES, Dec. 4, 1987, at 6.
8. Kim Barker, New Court Tries Prevention, SEATTLE TIMES, Feb. 21, 1999, at Bi, available in 1999 WL 6258310 (Ron Honberg, NAMI Legal Affairs Director, commenting on the
plight of the mentally ill offender).
9. Id. (observing that mentally ill offenders frequently leave jail without treatment). See
also John Monahan, The Scientific Status of Research on Clinical and Actuarial Predictionsof Violence, in MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY §
7-2.2.2 at 315 (D. Faigman ed. 1997); MICHAEL L. PERLIN, THE HIDDEN PREJUDICE 40
(2000) (noting "[n]inety percent of persons with mental disabilities are not violent."); John
Monahan, Mental Disorderand Violent Behavior: Perceptions on Evidence, 47 AM. PSYCHOL.
511, 519 (1992) ("Clearly, mental health status makes at best a trivial contribution to the overall
level of violence in society."); Jeffrey Swanson et al., Violence and Psychiatric Disorders in the
Community: Evidence from the Epidemiologic Catchment Area Surveys, 41 HOSP. & COMMUNITY
PSYCHIATRY 761 (1990); E. Fuller Torrey, Editorial: Jails and Prisons-America's New Mental
Hospitals, 85 AM. J. PUB. HEALTH 1611 (1995); NAMI, Criminalizationof Mentally Ill, supra
note 6, at 2.
10. Marino, supra note 4, at 1. See also Torrey, supra note 9, at 12-13. E. Fuller Torrey
observed,
Deinstitutionalization of seriously mentally ill individuals has been the largest failed
social experiment in twentieth-century America. It has failed not because the vast
majority of released individuals cannot live in the community, but because we did not
ensure that they receive the medications and aftercare that they need to do so successfully. The fact that we need jail diversion programs for these individuals is yet
one more reminder of how badly we have failed them.
Id.
11. MICHAEL L. PERLIN, LAW AND MENTAL DISABILITY 390 (1994) (noting that the
Reagan Administration cutbacks "resulted in over 350,000 people losing their [SSI] benefits
since the fall of 1981" and stating that "there is no question that the reduction of disability benefits was a significant factor in the increase in the number of homeless persons."). See also Harold
E. Shabo, Proposals for Working Group Regarding Adult Offenders with Mental Illness 1 (Jan.
1, 2000) (unpublished manuscript). Judge Shabo noted,
Upon discharge [from incarceration], individuals with mental illness are released gen-
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facilities that deal with ...social problems." The Bazelon Center for
Mental Health Law states that "[b]etween 600,000 and one million
men and women jailed each year have a mental illness[,] many [are]
arrested for nonviolent misdemeanors or 'crimes of survival,' such as
stealing food or trespassing[,] ...[or] in 'mercy arrests' by police
officers who find the public mental health system unresponsive and
the process of accessing its emergency services cumbersome."12 Similarly, one California county jail reported 250,000 new bookings and
the service of 21 million meals each year because local government was
purportedly "overwhelmed with [the] unmet needs of the poor and
mentally ill." 3 Senator Mike DeWine maintains, "Law enforcement
agencies and correctional facilities simply do not have the means, or
the expertise, to properly treat mentally ill inmates." 4 The National
Council on Disability (NCD), a federal agency authorized by
Congress and the President, emphasizes that "the manner in which
American society treats people with psychiatric disabilities constitutes
a national emergency and a national disgrace.""5
The United States Bureau of Justice reported that the nationwide
cost of housing a prisoner in a state correctional facility is about
$20,100 per year, or about $55 a day. 6 Similarly, the cost of incarerally without any appropriate linkage to mental health care in the community,
income supports such as SSI, and provisions for basic needs. Under these circumstances, recidivism, violation of conditions of release (probation or parole), and lack of
consistent, effective mental health treatment in the community make return to jail and
prison virtually inevitable.
Id. The National Working Group on Adult Offenders with Mental Health Needs is an organization comprised of legislators, judges, corrections administrators, mental health service directors, victim advocates, prosecutors, public defenders, law enforcement, jail administrators, public
policy experts, and academic policy experts.
12. Judge David L. Bazelon Center for Mental Health Law, Civil Rights and Human Dignity 1998-1999 Annual Report 6 (Jan.2000) <http://www.bazelon.org/ bazanrpt.pdf> ("[flncarceration is not cost effective or just or humane for [mentally ill] people who have committed
minor offenses essentially associated with systemic neglect. By definition, a penal institution is a
non-therapeutic environment.").
13. Bill Boyarsky, Budget Hearings Shift Emphasis to Plight of Homeless Mentally Ill, L.A.
TIMEs, June 12, 1986, at 1 (quoting Los Angeles Sheriff Block's comments on crowded, expensive jails).
14. Mike DeWine, Treatment for Mentally Ill Inmates, Congressional Press Releases (Federal Document Clearing House), Oct. 20, 1999, at 1.
15. Judge David L. Bazelon Center for Mental Health Law, The National Council on Disability Releases Report on People with PsychiatricDisabilities 2 (posted Feb. 7, 2000) <http://
www.bazelon.org/interest.html#NCD%20report>. The executive summary of the NCD report
notes that drastic changes in the "mental health system,.... criminal and civil justice systems,
housing, income supports, education, job training and many others... [are needed] so that
people with psychiatric disabilities are guaranteed their fundamental right as American citizens."
Id.
16. James J. Stephan, Bureau of Justice Statistics, State Prison Expenditures 1996 (visited
Aug. 25, 1999) <http://www.ojp.usdoj.gov/bjs/pub/ascii/spe96.txt> (reporting 1996 statistical
20001
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ceration for federal inmates is estimated at $23,500 per year." These
per capita expenditures rapidly approach astronomical figures: In
1996, annual state and federal prison expenditures were $22 billion
and $2.5 billion respectively.18 Regarding the composition of prisoners in correctional facilities, a 1999 United States Department of
Justice statistical report revealed that "[a]bout 10% of prison and jail
inmates reported a mental or emotional condition"; this number
amounts to about a quarter of a million inmates nationwide. 19 Some
view incarceration of the mentally ill as a societal injustice. Judges
presiding over hearings involving misdemeanors committed by mentally ill defendants state
that "[t]hese inmates should be in treatment,
20
not in and out of jail.,
Furthermore, the impact of imprisonment on the personal lives
of the disenfranchised, politically powerless, and often "invisible"
mentally disordered offenders may be devastating.21 NAMI notes that
correctional facilities are ill-equipped to provide adequate mental
2
health care to mentally ill inmates with severe psychiatric illnesses.
Mentally ill inmates are frequently punished, physically restrained, or
secluded in isolation cells because of the correctional staff's lack of
understanding regarding the nature of mental illness. Such prisoners
lack access to expensive, state-of-the-art medications and are not provided with rehabilitative services to facilitate their transition back to
the community.
This Article explores the establishment of mental health courts
as a partial solution to the perplexing societal problem that relegates
mentally ill offenders to a "revolving door" existence in and out of
prisons and jails. 23 This inescapable situation results from a paucity of
survey results).
17. Id.
18. Id.
19. Paula M. Ditton, U.S. Departmentof Justice Bureau of Justice Statistics, Mental Health
and Treatment of Inmates and Probationers, 1-2 (last modified July 11, 1999) <http://www.ojp.
usdoj.gov/bjs/pub/ascii/mhtip.txt> (noting about 280,000 prison and jail inmates are mentally
ill; convicted criminals with histories of mental health treatment comprise 16% of the prison population, about double the rate of mental illness in the general population); Interview with Judge
Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000) (stating that these Department of Justice
statistics are probably gross underestimates of the number of mentally ill offenders because such
figures are primarily based on self-reports of mental illness by clients).
20. Therapy Instead ofJail, PALM BEACH POST, Apr. 19, 1999, at 18A.
21. See PERLIN, supra note 9, at 40. Professor Perlin comments, "People with mental
disabilities have largely been invisible and without political power. Hidden for decades in large,
remote institutions, their 'stories' have never been incorporated into our social fabric or consciousness." Id. (footnotes omitted).
22. NAMI, Criminalizationof Mentally Ill, supra note 6, at 2.
23. MONAHAN, supra note 9, at 315 ("None of the data give any support to the sensationalized caricature of the mentally disordered served up the by media, the shunning of former
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effective humanitarian policies, laws, and procedures for treating such
medically disordered defendants. The establishment of mental health
specialty courts is investigated as a potential means of addressing the
complex legal issues and psycho-sociological problems faced by the
judicial system in dealing with mentally ill offenders.
Part II of this Article discusses basic principles of therapeutic
jurisprudence and preventative law: two critical concepts applicable to
just adjudication of cases involving mental health law. Part III briefly
chronicles the historical currents of underlying policies and the general
public's misguided, stereotypical attitudes, which have engendered
laws unfavorable to the just treatment of mentally ill offenders. Part
IV examines the successes of state and federal specialty courts in
focusing upon and resolving unique problems similar to those faced in
cases involving mental health issues. Two types of state specialty
courts-drug and family courts-will be examined as examples of
workable models from which to construct a corresponding mental
health specialty court system.
Part V advocates the establishment of mental health specialty
courts, discussing the following major topics: the general need for
such specialized state courts; the effectiveness of court reform; the
unique qualifications and role of the mental health court (MHCT)
judge; the promotion of a cooperative, nonadversarial justice system
within MHCTs; a mentally ill defendant's initial exposure to court
hearings, with interactions with defense and prosecution attorneys,
psychiatric medical experts, and other staff; the establishment of a
' rehabilitation back to
treatment plan with objectives for a "client's"24
the social community; and contingency plan management for potential
relapses among clients.
Part VI presents a proscriptive MHCT action plan to enable
states, courts, hospitals, correctional facilities, national support organizations, community service organizations, and others to reduce societal
patients by employers and neighbors in the community, or 'lock 'em all up' laws proposed by
politicians pandering to public fears.").
24. Mentally ill defendants are sometimes referred to generically as "clients" by legal and
medical staff. While courts traditionally address mentally disordered inmates as "defendants,"
the term "client" might be preferable in some contexts because it emphasizes a therapeutic focus
on diagnosing and treating the underlying mental illness. Similarly, Protection & Advocacy
defense attorneys, patients' rights advocates, and the Department of Justice express a preference
for the less stigmatizing phrase "persons or individuals with mental disabilities." While the
Author prefers this denotative phrase, until this cumbersome terminology becomes widely
promulgated in American society and its statutes, the more commonly utilized terms "mentally
ill" or "mentally disordered" "defendant" or "offender" will be used for convenience herein, notwithstanding some unavoidable negative connotations. See JESSE DUKEMINIER & STANLEY M.
JOHANSON, WILLS, TRUSTS, AND ESTATES 38 (2000) (noting that Jeremy Bentham observed,
"Error is never so difficult to be destroyed as when it has its root in language.").
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costs through the treatment and rehabilitation of mentally ill offenders. This action plan includes the following: projected financial
savings to the community resulting from implementation of specialized MHCTs; the predicted impact of MHCTs in reducing criminal
recidivism rates; the visible role of MHCT judges in the news media
as advocates of treatment of mental illness as a disease; support for
concomitant passage of laws promoting treatment and rehabilitation of
mentally ill offenders back into productive society; and model legislation for the establishment of pilot state mental health courts (see
Appendix A). Current Congressional and state proposed legislation is
discussed, including the recently enacted progressive law for a federal
mental health diversionary court program entitled "America's Law
Enforcement and Mental Health Project," codifying Congressional
companion bills H.R. 2594 and S. 1865.21
Finally, Part VII concludes with a return to the fundamental
therapeutic jurisprudence and preventative law principles underlying
the advocacy of the establishment of state mental health courts.
II. THE CONCEPT OF THERAPEUTIC JURISPRUDENCE AND
PREVENTATIVE LAW AS APPLIED TO MENTAL HEALTH LAW
Professor David B. Wexler has been a pioneer in promoting the
general concept of therapeutic jurisprudence-a theoretical framework
that is invaluable in the analysis of society's role in the adjudication
and treatment of mentally ill offenders. Therapeutic jurisprudence
probes the role of the law itself as a social and economic force in
producing both beneficial "therapeutic" and detrimental "antitherapeutic" effects upon individuals such as those with mental disabilities;
these effects result from the application of laws, rules, and procedures
upon societal institutions such as courts, correctional institutions, and
treatment facilities.26
25. See H.R. 2594, 106th Cong. § 1 (1999) (bill establishing mental health courts); S. 1865,
106th Cong. (1999) (noting companion bills to provide grants to create twenty-five state experimental mental health courts).
26. David B. Wexler, Putting Mental Health into Mental Health Law: Therapeutic Jurisprudence, in ESSAYS IN THERAPEUTIC JURISPRUDENCE 3, 8 (David B. Wexler & Bruce J.
Winick eds., 1991). Wexler states:
Therapeutic justice is the study of the role of the law as a therapeutic agent. It looks
at the law as a social force that, like it or not, may produce therapeutic or antitherapeutic consequences. Such consequences may flow from substantive rules, legal
procedures, or from the behavior of legal actors (lawyers or judges). The task of
therapeutic jurisprudence is to identify-and ultimately to examine empiricallyrelationships between legal arrangements and therapeutic outcomes. The research
task is a cooperative and thoroughly interdisciplinary one.... Such research should
then usefully inform policy determinations regarding law reform.
Id. See also David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence, 1 PSYCHOL.
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The theory of therapeutic jurisprudence maintains that the law
asserts beneficial therapeutic or detrimental antitherapeutic psychological or other consequences upon individuals 27 that are often
minimized by the legal community. 28 Concerned judges, attorneys,
law enforcement personnel, hospital administrators, and members of
the psychiatric or medical community possess a humanitarian responsibility to fully analyze and comprehend potential therapeutic and
antitherapeutic consequences of the law. 9 These various decisionmakers-knowingly or not-participate in molding the application of
legal rules and procedures to make such rules either more beneficial or
more detrimental to the treatment of the individuals impacted.3"
Closely related to therapeutic jurisprudence is the concept of
preventative law.3 Advocates of preventative law support the objective of obtaining just resolution of cases through nonadversarial
means. Proponents of both preventative law and therapeutic jurisprudence note that a reliance upon the American adversarial system for
justice may sometimes yield unsatisfactory results. 2 Our contentious
culture often promulgates an attitude that "litigation is war." Critics
observe that "the American legal system is a prime example of trying
to solve problems by pitting two sides against each other and letting
them slug it out in public."33 Commentators denigrate the "psychological brutality of the adversary system,"34 leading advocates of
preventative law to maintain that attorneys and judges possess the
opportunity to make major societal contributions by preventing or
circumventing costly, acrimonious litigation3 5 that often upsets the
PUB. POL'Y & L. 220 (1995).
27. See generally David B. Wexler & Bruce J. Winick, Introduction to LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE at xvii (David B. Wexler &
Bruce J. Winick eds., 1996).
28. See Stephen H. Behnke & Elyn R. Saks, TherapeuticJurisprudence: Inforned Consent as
a Clinical Indicationfor the Chronically Suicidal Patient with Borderline Personality Disorder, 31
Loy. L.A. L. REV. 945, 978 (1998).
29. Bruce J. Winick, The Jurisprudenceof Therapeutic Jurisprudence,in LAW IN A THERAPEUTIC KEY:
DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 646 (David B. Wexler &
Bruce J. Winick eds., 1996).
30. See Dennis P. Stoile et al., IntegratingPreventativeLaw and Therapeutic Jurisprudence:
A Law and Psychology Based Approach to Lawyering, 34 CAL. W. L. REV. 15, 33, 37 (1997). See
also David B. Wexler, Applying the Law Therapeutically, 5 APPLIED & PREVENTATIVE
PSYCHOL. 179 (1996).
31. See Dennis P. Stolle, Professional Responsibility in Elder Law: A Synthesis of Preventative Law and TherapeuticJurisprudence, 14 BEHAV. SC. & L. 459, 469 (1996).
32. See Stolle et al., supra note 30, at 36.
33.
DEBORAH TANNEN, THE ARGUMENT CULTURE: MOVING FROM DEBATE TO DIA-
LOGUE 131 (1998).
34. Ellen A. Waldman, The Evaluative-FacilitativeDebate in Mediation: Applying the Lens
of TherapeuticJurisprudence,82 MARQ. L. REV. 155, 160 (1998).
35. See, e.g., LOUIS M. BROWN, LAWYERING THROUGH LIFE: THE ORIGIN OF PRE-
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defendant's psyche, depletes financial resources, and prolongs judicial
resolution of matters.3 6 Courts and legislatures considering a preventative law approach toward mentally ill defendants might consider
the creation of a less adversarial and more supportive system of justice.
Supporters of both therapeutic jurisprudence and preventative
law recognize a common objective in promoting the psychological
health of clients involved in the legal process, thereby minimizing the
detrimental effects of the law.37 Dennis Stolle suggests, "If more than
one legal tool is available to achieve the [client's] intent, the role of the
integrated framework is to choose the most therapeutic, or, at minimum, the least antitherapeutic alternative."3 Lawyers, whether in
private practice or public service, have the unique opportunity to
become "helping professionals," preserving the psychological wellbeing of clients in a manner consistent with notions of fairness and
justice.39 Rather than giving attorneys, judges, and other legal actors a
novel role, therapeutic jurisprudence and preventative law provide
"merely a sharper conceptualization of and focus on work that a
number of us ... had been engaged in earlier."4 Since existing ethics
codes of professional responsibility for attorneys and judges lack a specifically defined role in the representation of mentally ill clients, this
"sharpened focus" of legal professionals necessarily fills a gap in the
law. 4
VENTATIVE LAW (1986). But see, e.g., John Scott Hoff, Attorneys as Warriors, DEC NEBRASKA
LAWYER 16 (1998) (noting nonadversarial approaches may contradict an attorney's education,
personality, or financial interests).
36. See Edward D. Re, The Lawyer as Counselorand the Prevention of Litigation, 31 CATH.
U. L. REV. 685, 695 (1982).
37. See Dennis P. Stolle & David B. Wexler, Therapeutic Jurisprudence and Preventative
Law: A Combined Concentration to Invigorate the Everyday Practiceof Law, 39 ARIZ. L. REV. 25,
27(1997).
38. Stolle et al., supra note 30, at 24.
39. See Scott E. Isaacson, Preventative Law: A Personal Essay, UTAH B. J., Oct. 1996, at
14, 17. See also Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1
PSYCHOL. PUB. POL'Y & L. 193 (1995). Judge Re comments,
A good lawyer must be more than a passionate advocate for a specific client and must
consider more than merely the specific case or issue presented. In the role of counselor, whose goal is the prevention of litigation and the settlement of disputes, lawyers
fulfill their classic role as healers and peacemakers rather than promoters of litigation
and strife.
Stolle & Wexler, supra note 37, at 33 n.12 (citing Edward D. Re, The Causes of Popular
Dissatisfactionwith the Legal Profession, 68 ST. JOHN'S L. REV. 85, 116 (1994)).
40. David B. Wexler & Bruce J. Winick, Patients, Professionals, and the Pathof Therapeutic
Jurisprudence: A Response to Petrila, 10 N.Y.L. SCH. J. HUM. RTs. 907, 909 n.9 (1993), reprinted
in LAW IN A THERAPEUTIC KEY:
DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 707
(David B. Wexler & Bruce J. Winick eds., 1996).
41. Janet B. Abisch, MediationalLawyering in the Civil Commitment Context: A Therapeutic
JurisprudenceSolution to the Counsel Role Dilemma, 1 PSYCHOL. PUB. POL'Y & L. 120, 138-39
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Applying therapeutic jurisprudence principles to legal practice
concerning the mentally ill, research by the MacArthur Network on
Mental Health and the Law revealed that patient perceptions of
coercion in the mental hospital admission process (e.g., in civil commitment) were highly correlated with patient views of provided
procedural justice. 2 A significant finding of the MacArthur study
was that clients who are given baseline procedural justice in civil
commitment proceedings feel an absence of coercion if judges,
attorneys, clinicians, law enforcement, and ancillary staff are perceived
as having benevolent intentions, treating clients with dignity, compassion, fairness, and respect.43 Sometimes seemingly inconsequential
courtroom conduct, such as a judge's permission to permit a patient to
appear in the courtroom in business dress rather than in a hospital
gown or prison garb, may prove significant in preserving a client's
dignity, which correspondingly may impact treatment outcome." The
MacArthur study validates principles of cognitive and social psychology that indicate that choice and coercion have diametrically opposed
consequences.4 5 Research suggests that mentally ill offenders who
freely choose to obtain treatment, rather than being forced into treatment against their will, may be more committed to treatment
objectives, thus benefiting more consistently from it.46 Thus, thera(1995). But see Thoughts from the Peer/SelfAdvocacy Unit, 68 PROTECTION & ADVOCACY,
INC. NEWSLETTER, Summer 1999, at 13. Clients have formed self-advocacy units in reaction to
perceived deficiencies of the legal system. Id. For example, clients at Protection & Advocacy
run the Peer/Self Advocacy Unit, started in 1989. Id. Another client-run advocacy program is
the California Network of Mental Health Clients, founded in 1986. Id. Client advocates "speak
in favor of a cause" in asserting their own legal mental health rights. Id.
42. See generally Nancy S. Bennet et al., Inclusion, Motivation, and Good Faith: The Morality of Coercion in Mental Hospital Admission, 11 BEHAV. SCI. & L. 295 (1993); Kirk Heibrun &
Gretchen White, The MacArthur Risk Assessment Study: Implicationsfor Practice, Research, and
Policy, 82 MARQ. L. REV. 733 (1999); Steven K. Hoge et al., Perceptions of Coercion in the
Admission of Voluntary and Involuntary PsychiatricPatients, 20 INT'L J. L. & PSYCHIATRY 167
(1997).
43. See generally Tom R. Tyler, The Psychological Consequences of Judicial Procedures:
Implications for Civil Commitment Hearings, 46 SMU L. REV. 433 (1992). But see Ronald
Diamond, Coercion in the Community: Issues for Mature Treatment Systems, NEW DIRECTIONS
FOR MENT. HEALTH SERVICES, Summer 1995, at 3, 16 (noting that community-based mental
health systems may employ coercive tactics to control "the client's money, influence access to
housing, or use contact with family or probation officers to increase adherence to treatment
regimens").
44. Id. See also Bruce J. Winick, Therapeutic Jurisprudence and the Civil Commitment
Hearing, 10 J. CONTEMPORARY LEGAL ISSUES 37, 42 (1999) (noting "[clivil commitment pro-
ceedings are often extremely informal, sometimes occurring in courtrooms set up at the hospital
in which patients appear in hospital garb rather than street clothes," possibly resulting in devaluation of the clients' rights).
45. See generally Bruce J. Winick, The Right to Refuse Mental Health Treatment: A Therapeutic JurisprudenceAnalysis,17 INT'L J. L. & PSYCHIATRY 99 (1994).
46. Alexander Greer et al., Therapeutic Jurisprudenceand Patients'Perceptions of Procedural
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peutic jurisprudence and preventative law principles may provide a
constructive contextual framework in which to implement the
formation of specialized mental health courts. Within this theoretical
structure, judges, attorneys, medical experts, hospital administrators,
law enforcement personnel, and other legal system participants necessarily focus upon the maximization of the therapeutic consequences
upon individuals through application of substantive and procedural
rules.
III. HISTORICAL BACKGROUND SURROUNDING POLICY AND LAWS
AFFECTING THE MENTALLY ILL
A. The Case of Miss Louisa Nottidge
In 1849, the Lord Chief Baron of the Court of the Exchequer and
a special jury heard the case of Nottidge v. Ripley.47 Miss Louisa Nottidge's trial has since been immortalized as a harbinger of change in
legal policies concerning the mentally ill.48 In this case, the judge
awarded Louisa fifty pounds and court costs against two of her family
members for wrongfully imprisoning her in an insane asylum. 49 At
trial, it was revealed that, upon her father's death, Louisa and her
spinster sisters became captivated with an amoral religious cult led by
a man named "Prince." 5 ° The four women moved to the remote
"Abode of Love" country house location of Prince's Lampeter Bretheren religious cult. Three of the sisters lost their worldly possessions
in marriages to penniless men of the sect." 1 Louisa lived for six weeks
in the cult, "dazzled by its luxury, charmed with its games and pastimes, and sustained 52by glorious assurances of judgment being past,
and heaven to come.
Due Processof Civil Commitment Hearings, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS
IN THERAPEUTIC JURISPRUDENCE 923, 930 (David B. Wexler & Bruce J. Winick eds., 1996).
Greer's study notes that angry, sad, displeased, or confused patients who feel "coerced by the
[civil commitment] process ... may [adversely] affect the course and conduct of their treatment
in the hospital." Id. However, further scientific investigation is necessary to determine if these
general principles also apply to clients with severe mental illness.
47. Andrew Scull, The Theory and Practice of Civil Commitment, 82 MICH. L. REV. 793,
793 (1984) (citing TIMES (London), June 25, 1849, at 7, col. 4; TIMES (London), June 26, 1849,
at 7, col. 2; TIMES (London), June 27, 1849, at 7, col. 4).
48.
See generally id. (reviewing THE COURT OF LAST RESORT:
MENTAL ILLNESS AND
THE LAW (Carol A.B. Warren ed., 1982), and recounting the calamitous story of Louisa
Nottidge).
49. Id. at 793 (citing TIMES (London), June 30, 1849, at 5, col. 1).
50. Id.
51. Id. at 794 (citing TIMES (London), June 30, 1849, at 5, col. 1).
52. JOHN CONOLLY, A REMONSTRANCE WITH THE LORD CHIEF BARON, TOUCHING
THE CASE OF NOTTIDGE V. RIPLEY 16 (1849).
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Louisa's mother was shocked and appalled by her daughter's life
of degradation and debauchery, and she sent Louisa's brother and
brother-in-law to rescue Louisa from a life of sin. The two men
53
physically dragged her from the house, screaming and struggling.
Louisa's family then recruited medical doctors to deem her mentally
delusional and insane simply because of her immoral and financially
irresponsible lifestyle. Louisa was then committed to Dr. Stillwell's
madhouse, where she was confined for over a year. In the insane
asylum, Louisa's delusions continued with thoughts that Prince was
"God manifest in the flesh" and that she was immortal and would
soon be "taken up to heaven in the twinkling of an eye." She was
diagnosed as a religious fanatic. Still under the cult's influence, upon
one brief escape from the asylum, Louisa returned to the "Abode of
Love," transferring all her life savings to Prince. 4
While medical experts testified that Louisa was insane and
should be recommitted to a mental institution, the sage Lord Chief
Baron disagreed. 5 In a key victory for mental health patients, the
judge radically instructed the jury, "It is my opinion that you ought to
liberate every person who is not dangerous to himself or others ...and
I desire to impress that opinion with as much force as I can."5 6 The
London Times newspaper noted the court's explicit underlying policy:
"We must not stretch a harmless hallucination into legal insanity....
The shades and gradations of error and folly are so insensibly blended
that we could not incarcerate and coerce such [a] ...one without
danger to others." 7 Thus, public awareness was brought to the plight
of sane persons who were, like Louisa Nottidge, improperly committed to the madhouses of the nineteenth century."
John Conolly, renowned psychiatric commentator of his time,
noted:
If the liberty of an insane person is inconsistent with the safety
of his property or the property of others; or with his preservation
from disgraceful scenes and exposures; or with the tranquility of
his family, or his neighbors, or society;-if his sensuality, his
disregard of cleanliness and decency, make him offensive in
private and public, dishonoring and injuring his children and his
name;-if his excessive eccentricity or extreme feebleness of
53.
54.
55.
56.
57.
58.
Id.
Id.
Id.
Scull, supra note 47, at 794 (citing TIMES (London), June 27, 1849, at 7, col. 4).
Id. at 794 (citing TIMES (London), June 30, 1849, at 5, col. 1).
See John McCandless, Liberty and Lunacy: The Victorians and Wrongful Commitment,
in MADHOUSES AND MADMEN 339 (A. Scull ed., 1981).
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mind subject him to continual imposition, and to ridicule, abuse,
and persecution in the streets, and to frequent accidents at home
and abroad;-his protection and that of society demands that he
should be kept in a quiet and secluded residence, guarded by
watchful attendants and not exposed to the public. 9
Conolly maintained that some men and women, lacking societal
homeostatic mechanisms keeping them in conformity with the orderly
day-to-day workings of society, should be sequestered from society.6"
Accordingly, out-of-control persons who exhibit public explosions of
anger, lack of personal hygiene, drunkenness, or other conduct disruptive to the smooth functioning of society should be placed in
protective treatment facilities.61 Conolly advocated sequestering these
individuals commenting, "People of this kind may not endanger their
is inconsistent with the
lives or those of others, but their being at large
62
,
welfare.
own
their
and
society,
comfort of
B. Transitioninto the Twentieth Century
As England and the United States entered the twentieth century,
the mentally ill were assigned to treatment facilities (mental institutions, for example), an action consistent with the suggestions of
Conolly and other reformers. This policy was reflected by the enactment of laws that generally permitted psychiatrists to delineate the
fine dividing line between sanity and insanity.63 While the treatment
objectives were commendable, mental institutions failed to carry out
their mandates. Thus, in the 1950s, studies showed that public
attitudes towards the mentally ill remained unenlightened, with most
American citizens espousing the stereotypical viewpoint that mentally
ill persons were unpredictable, threatening, and potentially violent.64
59. Scull, supra note 47, at 795 (citing CONNOLLY, supra note 52, at 5).
60. Id. (citing CONNOLLY, supra note 52, at 5).
61. CONNOLLY, supra note 52, at 9-10.
62. Id. at 9. Conolly further observed that Louisa Nottidge suffered from "feebleness and
unsoundness of mind," preventing her from properly caring for herself and guarding her financial assets. Id. at 21. He noted Louisa's civil commitment humanely protected her "from
legalized robbery, and her person from the possibility of legalized prostitution." Id. at 18.
63. But see Scull, supra note 47, at 796 (citing McCandless, supra note 58, at 339-62 (indicating the widespread distrust of the objectivity and reliability of psychiatric evaluation of patient
competency, with Sir Frederick Pollock urging limitations in the criteria for civil commitment)).
64. See generally ANTHONY COLOMBO, UNDERSTANDING MENTALLY DISORDERED
OFFENDERS: A MULTIAGENCY PERSPECTIVE (1997); ELAINE CUMMINGS & JOHN CUMMINGS, CLOSED RANKS: AN EXPERIMENT IN MENTAL HEALTH EDUCATION (1957); JOINT
COMMISSION ON MENTAL ILLNESS AND HEALTH, ACTION FOR MENTAL HEALTH (1961).
See also Ron Schraiber, Stereotyping Mental Illness, L.A. TIMES, Apr. 3, 1995, at 3. Schraiber
observes that dehumanizing media stereotypes create a hostile world for those unfortunately
afflicted with mental disorders. Id. This patient rights advocate noted "perhaps, the award for
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Dr. Shirley Star of the National Opinion Research Centre at the University of Chicago discovered that the general public's reaction to the
mentally ill was to view such persons with "fear, distrust, suspicion,
and apprehension derived primarily from the assumption that the
person could not really be cured."65
Similarly, the Joint Commission on Mental Illness and Health,
founded in 1955, published a report concluding that American society
tended to place negative stereotypical labels upon the mentally ill,
often punishing them for their illness.66 As a consequence of these
views, in the mid-1950s, it was estimated that "there were approximately 565,000 people with severe mental illnesses in state psychiatric
hospitals."
Hospital institutional conditions were deplorable, as
depicted in the film classic "One Flew Over the Cuckoo's Nest."67 In
1955, the use of mental hospitals was so prevalent that the number of
patients-estimated at 819,000--exceeded the number of inmates
incarcerated in prisons.68 Newspaper reporters and social commentators published accounts of the horrifying conditions at mental
institutions, called "snake pits," in the early 1950s. 6'9 Overcrowded
and deteriorating buildings were viewed as fostering mental deteriora-
the most stereotypical statement goes to The Times [sic] when it proclaimed.. . , 'A mentally
disturbed person with only the thinnest streak of violence can produce disaster at any time, any
place."' Id. Moreover, the University of Pennsylvania's Annenberg School for Communication
conducted a study of network dramas spanning 25 years and found that "mentally ill" characters
were "the single most violent group on TV." Id.
65. COLUMBO, supra note 64, at 10 (citing Shirley Star, What the Public Thinks About
Mental Health and Mental Illness, Paper Presented at the Annual Meeting of the National Association for Mental Health 23 (Nov. 19, 1952) (available on microfilm at the University of
Chicago).
66. JOINT COMMISSION ON MENTAL ILLNESS AND HEALTH, ACTION FOR MENTAL
HEALTH 100-01 (1961).
67. Claudine Chamberlain, Out of the Cuckoo's Nest: Court Ruling Supports Community
Care, 2-3 (visited on Oct. 28, 2000) <http://abcnews.go.com/sections/living/InYourHead/
allinyourhead_49.html> (citing ONE FLEW OVER THE CUCKOO'S NEST, a movie dramatically
but accurately portraying some of the abuses of mental institutions). Chaimberlin notes that
state hospitals have progressed substantially in quality of care-taking, away from the "Nurse
Ratchet" approach of the 1950s and the cruel treatment of mental health patients by infliction of
overmedication, neglect, and abuse. Id. The current challenge is to transfer mentally ill patients
from state hospitals to superior, high quality community care treatment programs. Id. The
National Mental Health Association hopes to utilize the $245 billion that states will receive over
the next 10 years from tobacco lawsuit settlements for community mental health programs. Id.
68. See C.A. KIESLER & A. SIBULKIN, MENTAL HOSPITALIZATION: MYTHS AND
FACTS ABOUT A NATIONAL CRISIS (1987). See also J.Q LA FOND & M.L. DURHAM, BACK
TO THE ASYLUM: THE FUTURE OF MENTAL HEALTH LAW AND POLICY IN THE UNITED
STATES (1992).
69. See generally ALEX DEUTSCH, THE MENTALLY ILL IN AMERICA: A HISTORY OF
THE CARE AND TREATMENT FROM COLONIAL TIMES (2d ed. 1949); MARY JANE WARD,
THE SNAKE PIT (1949).
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tion and dependency among clients.7" The courts responded by
striking down state commitment statutes as unconstitutional because
the statutes authorized involuntary hospitalization of mentally ill
individuals who were not dangerous. 7 Moreover, excessive periods of
involuntary commitment and detention were held to interfere with a
patient's constitutional right to a jury trial.72
In the 1960s and 1970s, court intervention led to a reduction of
the average duration of hospitalization and the closing of state institutions by officials.7 3 Yet, even after civil liberty reforms, involuntarily
committed patients in state hospitals consisted primarily of the
poverty-stricken and uneducated-individuals lacking the socioeconomic resources sufficient to provide them with less drastic
alternatives. 74 However, promised replacement community mental
health centers "never materialized," forcing America's homeless mentally ill into the streets or correctional institutions.75 During the
1980s, the number of homeless citizens needing food, shelter, and
clothing grew rapidly, with a large
percentage of these individuals
suffering from mental disorders. 76 The American Psychiatric Association's Task Force on the Homeless Mentally Ill reported that the
increase in the homeless mentally disordered population was caused
by society's failure to implement deinstitutionalized, communitybased substitutes.77 Current estimates are that approximately 40% to
70. See generally E. GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES (1961).
71. See Lessard v. Schmidt, 349 F. Supp. 1078, 1093 (E.D. Wis. 1972), vacated and
remanded, 421 U.S. 957 (1975), and reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976).
72. See id.
73. See generally KIESLER & SIBULKIN, supra note 68. See also P. LERMAN, DEINSTITUTIONALIZATION AND THE WELFARE STATE (1982).
74. See generally R.A. Nicholson, Correlatesof Commitment Status in PsychiatricPatients,
100 PSYCHOL. BULL. 241 (1993).
75. Wrong Answer, supra note 7, at 6. See E. FULLER TORREY, OUT OF THE SHADOWS:
CONFRONTING AMERICA'S MENTAL ILLNESS CRISIS 8-9 (1997) ("In effect, approximately 92
percent of the people who would have been living in public psychiatric hospitals in 1955 were not
living there in 1994 ....
[A]pproximately 763,391 severely mentally ill people ... are living in
the community today who would have been hospitalized 40 years ago."); Benton McFarland,
Investigators' and Judges' Opinions About Civil Commitment, 17 BULL. AM. ACAD. PSYCHIATRY
& L. 15 (1989). Similarly, the Oregon Task Force on Civil Commitment reported that investigators found community resources were lacking, preventing the diversion of clients from
involuntary civil commitment into treatment.
76. See generally LA FOND & DURHAM, supra note 68. See also Lamb, supra note 7, at 276
(noting that the American Bar Foundation reported that many laws permit "involuntary hospitalization of mentally ill persons who are incapable of providing for their basic necessities, such
as food, clothing, and shelter.") (footnote omitted).
77.
See generally E. FULLER TORREY, NOWHERE TO GO:
THE TRAGIC ODYSSEY OF
THE HOMELESS MENTALLY ILL (1988); H.R. Lamb & J.A. Talbott, The Homeless Mentally Ill:
The Perspective of the American Psychiatric Association, 256 J. AM. MED. ASSOC. 498 (1986);
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[Vol. 24:373
50% of the homeless are seriously mentally ill, with half suffering from
treatable schizophrenia.7 8
Recent studies have investigated the public's continued irrational
rejection and fear of mentally ill offenders, as well as its lack of sympathy toward them, both of which may interfere with the assimilation
of these individuals back into the community. 79 For example, in 1998,
Dr. Bruce Link commented,
to date, nearly every modem study indicates that public fears are
way out of proportion to the empirical reality. The magnitude
of the violence risk associated with mental illness is comparable
to that associated with age, educational attainment and gender
[for these offenders].S8
Misguided public opinion has resulted in laws and social policies
that are detrimental to the well-being of mentally ill offenders,8' often
leading to inescapable imprisonment and homelessness rather than to
the provision of humane diagnosis, treatment, and rehabilitation.
AMERICAN PSYCHIATRIC ASS'N TASK FORCE REPORT No. 26, INVOLUNTARY COMMITMENT TO OUTPATIENT TREATMENT 1 (1987) ("The purported effectiveness of deinstitution-
alization was predicated both on the availability of effective treatment in the community, and on
the willingness of patients to accept treatment voluntarily.... Many of these patients responded
well to treatment when hospitalized, but rapidly relapsed after discharge, leading to the 'revolving door' syndrome of repeated brief hospitalizations followed by relapse after discharge.").
78. See PERLIN, supra note 11, at 389 n.62; Wrong Answer, supra note 7, at 6. While the
1990 United States census noted that approximately 230,000 citizens were homeless-with
180,000 residing in shelters and 50,000 living on the streets---the Census Bureau considers these
numbers low, with more reliable estimates counting in excess of one-half million-and perhaps
as many as two million or more-homeless Americans. See PERLIN, supra note 11, at 389.
Professor Perlin estimates the number of homeless who are mentally ill to be between 10% and
90%, with surveys reporting that one-third, one-half, or three-quarters of homeless persons are
mentally ill. Id.
79. See generally COLOMBO, supra note 64, at 30-31; B.M. Murphy et al., Attitudes Toward
the Mentally Ill in Ireland, 10 IRISH J. PSYCHOL. MEDICINE 75 (1993); George Wolff et al.,
Community Attitudes to Mental Illness, 168 BRITISH J. OF PSYCHIATRY 183-90 (1996); George
Wolff et al., Community Knowledge of Mental Illness and Reaction to Mentally Ill People, 168
BRIT. J. OF PSYCHIATRY 191 (1996).
80. Vicki Fox Wieseltheir & Michael Allen, Don't Scapegoat People with Mental Illness, ST.
LOUIS POST-DISPATCH, Sept. 5, 1999, at B3 (noting Dr. Link's comments in the Archives of
General Psychiatry).
81. CENTER FOR MENTAL HEALTH SERVICES, NATIONAL INSTITUTES OF HEALTH,
MENTAL HEALTH: A REPORT OF THE SURGEON GENERAL 4 (1999) (stating, "mental illness
is the second leading cause of disability and premature mortality."). See generally Robert C.
Kessler, Lifetime and 12 Month Prevalence of DSM-III-R Psychiatric Disorders in the United
States: Results from the National Comorbidity Survey, 51 ARCHIVES OF GENERAL PSYCHIATRY
8-19 (1992) (noting that 22% of adults and 20% of children suffer from mental disorders each
year).
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C. Current Laws and Policies Concerning Imprisonment, Commitment,
and Treatment of Mentally Ill Offenders
This section will provide a brief overview of current laws and
social policies concerning the imprisonment, commitment, and treatment of mentally ill offenders.
1.
United States Department of Justice Bureau of Justice and NAMI
Statistics on Incarcerated Mentally Ill Offenders
A recent survey by United States Department of Justice revealed
that about ten percent of prison and jail inmates reported a mental or
emotional condition.8 2 Ten percent of these mentally ill offenders
indicated they had stayed overnight in a mental hospital or program.83
In 1998, an estimated 283,800 mentally ill patients were incarcerated
in the nation's prisons or jails.84 Mentally ill inmates comprised sixteen percent of currently incarcerated state prisoners, seven percent of
federal inmates, and sixteen percent of those housed in local jails.S
For offenders released on probation, another sixteen percent (estimated at 587,800 former inmates) had either been treated for mental
illness or stayed overnight in a mental hospital at some time in their
lives.86
82. Kessler, supra note 81, at 1-2.
83. Id.
84. Ditton, supra note 19, at 1-2 (basing findings on self-reported data on the 1997 Survey
of Inmates in Local Jails, and the 1995 Survey of Adults on Probation); Good Morning America I,
supra note 5 ("For a quarter million of America's mentally ill, [the Los Angeles County jail]...
It has become, by sheer numbers, the largest
is as close to a hospital as they'll ever get ....
mental institution in the United States."). But cf. S. 1865, 106th Cong. § 1 (1999) (estimating
that "between 600,000 and 700,000 mentally ill persons are annually booked in jail alone, according to the American Jail Association."). It is estimated that 670,000 mentally ill persons were
booked in U.S. jails in 1996. Judge David E. Bazelon Center for Mental Health Law, Criminalization of People with Mental Illnesses (May 26, 2000) <http://www.bazelon.org/ decrim.html>.
In addition, 40% of all Americans with a serious mental illness were estimated to be in jail or
prison at any given time. Id. This percentage comprises approximately 10-30% of all inmates.
Id. See also Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000) (noting
that Bureau of Justice statistics are probably gross underestimates of incarcerated mentally ill
offenders, since these figures are based entirely on self-reporting by prisoners).
85. Ditton, supra note 19, at 2.
86. Id. at 2. See also Shabo, supra note 11, at 12-13. Judge Shabo notes that correctional
institutions often lack a "uniform, effective method of screening inmates for mental illness" perhaps utilizing an "ostrich-like head-in-the-sand" approach, covertly designed to avoid the
expense of treatment of these offenders. Id. He advocates that the government sponsor the
implementation of a universal screening protocol, based on investigations that are not limited to
the currently utilized compilation of self-reporting statistics, to identify mentally disordered
defendants in custody. Id. Thus, Judge Shabo maintains that current statistics, based virtually
exclusively upon self-reports, grossly underestimate the number of mentally ill inmates housed
in correctional facilities. Id.
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Bureau of Justice Statistics reported in 1996 reveal that over onethird of jail inmates reported a physical or mental disability, with one
in ten jail prisoners reporting a mental or emotional illness. 7 For
many mentally ill offenders, incarceration may lead to victimization by
rape and physical assault, solitary confinement for violating rules they
are incapable of fathoming, neglect of medical problems, or even
suicide."
As a class, mentally ill offenders reported high rates of homelessness, unemployment, alcohol or drug use, and either physical or sexual
abuse prior to their imprisonment.8 9 NAMI estimates that "25 to 40
percent of America's mentally ill will come into contact with the
criminal justice system."9
Dr. E. Fuller Torrey of the National
Institute of Mental Health noted that most "seriously mentally ill
individuals who end up in jail have been charged with relatively minor
offenses," primarily "assault, theft [of] property or services, disorderly
conduct, alcohol or drug-related charges, and trespassing."" He adds,
"common forms of theft for seriously mentally ill individuals are
92
shoplifting and failing to pay for restaurant meals ('dine and dash').
Some ordinances allow the homeless to be arrested for loitering or
panhandling.93 Perhaps surprisingly, it has been reported that as high
as "29% of jails sometimes incarcerate mentally ill persons against
87. Bureau of Justice Statistics, U.S. Department of Justice, Profile of Jail Inmates 1996, 1,
12 (visited Oct. 15, 2000) <http://www.ojp.usdoj.gov/bjs/pub/pdf/pji96.pdf>.
88. See TORREY, supra note 75, at 31-35. See also Torrey, supra note 9, at 12. Dr. E.
Fuller Torrey cites an incident where a mentally ill inmate
was pulled out of line while waiting for a meal in a jail cafeteria. [He] was violating
jail rules requiring inmates to remain silent, place their hands in their pockets, and
keep their shirts tucked in. He was beaten by the guard so severely that he suffered
permanent brain damage. As a mental health official in a California county jail
phrased it, "The bad and the mad don't mix."
Id. See also Good Morning America I, supra note 5. Dr. Milton Miller commented, "To be in jail
is a miserable, horrible experience. It's full of shame, it's full of defeat, it's full of hopelessness,
it's scary. It would have to be 10 times more difficult for mentally ill offenders than for those
without phobias, depression, schizophrenia, or other disorders." Id.
89. Ditton, supra note 19, at 11.
90. S. 1865, 106th Cong. § 1 (1999).
91. Torrey, supra note 9, at 1612.
92. Id.
93. CAL. PENAL CODE § 647 (1999) (permitting law enforcement to charge a homeless
person with a misdemeanor for disorderly conduct for loitering or "wandering upon the streets or
from place to place without apparent reason or business."); D.C. CODE §§ 22-3311-§ 22-3316
(1999) ("Panhandling Control") (considering "continuously asking, begging, or soliciting alms
from a person" aggressive behavior and categorizing it as a criminal offense); MASS. ANN. LAWS
ch. 272, § 66 (1999) ("[P]ersons wandering abroad and begging, or who go about... in...
public places for the purpose of begging or to receive alms ...shall be deemed vagrants and may
be punished by imprisonment for not more than six months in the house of correction.").
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whom no criminal charges were filed."94 The cost of incarcerating mentally ill offenders is exorbitantly high. In 1996, Bureau of Justice
statistics reported that national spending was $22 billion for state
prisons and another $2.5 billion for federal prisons, for a total annual
expenditure of $24.5 billion. 95
Almost half of the states reported per capita correctional facility
costs for incarcerating prisoners of between $20,000 and 30,000 per
year. 96 Considering the high costs of incarcerating mentally ill offenders, advocates of therapeutic jurisprudence and preventative law
believe rehabilitation and treatment would reduce the economic costs
associated with this class of offenders. Section III of this Article will
probe justifications for these viewpoints in some detail.
2.
Overview and Assessment of Current Court Criminal
Proceedings in Adjudication of Mentally Ill Offenders
This section will discuss commitment and recommitment procedures in generalist courts and the protection of mentally ill offenders'
constitutional rights.97
a. Initial Court Civil Commitment Decisions in Generalist Trial Courts
A fundamental principle in criminal proceedings is that a defendant-even one who possesses a mental disorder-is innocent unless
proven guilty, with the burden of proof upon the State to prove each
and every element of the crime beyond a reasonable doubt. However,
under both state and federal laws, the insanity defense must be affirmatively asserted and proved by the defendant.9" Commitment laws
94. TORREY, supra note 75, at 31-35. Dr. E. Fuller Torrey notes that a 1992 jail survey
found that uncharged mentally ill persons are temporarily housed in jails to "await a psychiatric
examination, the availability of a psychiatric bed, or transportation to a public psychiatric hospital, which, in rural states, may be many miles away." Id. He observes, "I have personally seen
a woman with bipolar disorder who had been in a county jail in Indiana for 4 months, not having
been charged with any crime, merely awaiting the availability of a bed in a state psychiatric
hospital." Id.
95. James J. Stephan, Bureau of Justice Statistics, State Prison Expenditures 1996, at 3
9
(visited Aug. 25, 1999) <http://www/ojp.usdoj.gov/bjs/pub/ascii/spe 6.txt> (reporting 1996
statistical survey results).
96. Bureau of Justice Statistics, U.S. Department of Justice, Criminal Offender Statistics, 2
(visited on Oct. 15, 2000) http://www.ojp.usdoj.gov/bjs/crimoff.htm. Expenditures include
costs of operations; employee wages, salary and benefits; food service; medical care; transportation; land and building purchases; utilities; and building construction, renovation, and repair.
Id.
97. See generally MICHAEL L. PERLIN, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL (1998); ROBERT M. WETTSTEIN, TREATMENT OF OFFENDERS WITH MENTAL
DISORDERS (1998).
98. See, e.g., United States v. Byrd, 834 F.2d 145, 146 (8th Cir. 1987); State v. Marley, 364
S.E.2d 133, 135 (N.C. 1988); State v. Moorman, 744 P.2d 679, 687 (Ariz. 1987). See also United
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[Vol. 24:373
generally require a finding of both mental illness and dangerousness
resulting from that mental illness.99 The judge, with broad discretionary powers, possesses enormous responsibility to ensure protection
of a defendant's constitutional substantive and procedural due process
rights before depriving the defendant of his liberty.1"'
Courts also have upheld state statutes requiring a defendant's
immediate hospitalization following an insanity defense.' After finding a defendant not guilty by reason of insanity, courts generally
schedule a hearing within approximately sixty days to determine the
need for hospitalization. Prior to the hearing, the defendant may be
hospitalized. Similarly, defendants found incompetent to stand trial
may be held involuntarily for evaluation. 2 In justifying these deciStates v. Cameron, 907 F.2d 1051, 1065 n.26 (11th Cir. 1990) (noting that House Report No.
980577 states "[the definition of insanity in section 17(a)] constitutes the only affirmative defense
based on mental disorder that will be applicable in Federal courts.").
99. PERLIN, supra note 97, at 44.
100. See State v. Krol, 344 A.2d 289, 301-02 (N.J. 1975). In Krol, the New Jersey Supreme
Court stated,
Dangerous conduct involves not merely violation of social norms enforced by criminal
sanctions, but significant physical or psychological injury to persons or substantial
destruction of property. Persons are not to be indefinitely incarcerated because they
present a risk of future conduct which is merely socially undesirable. Personal liberty
and autonomy are of too great value to be sacrificed to protect society against the
possibility of future behavior which some may find odd, disagreeable, or offensive....
Unlike inanimate objects, people cannot be suppressed simply because they may
become public nuisances.
Id. at 301-02.
101. See, e.g., Jones v. United States, 463 U.S. 354, 370 (1983); State v. Huiett, 394 S.E.2d
486, 489 (S.C. 1990); People v. Catron, 246 Cal. Rptr. 303, 309-10 (Cal. Ct. App. 1988). See
generally PERLIN, supra note 9, at 232. While the public has often expressed the common
misconception that criminals may escape punishment for their crimes by deceiving psychiatrists
and "faking mental illness," there is no rational basis for this view. Id. Professor Perlin notes,
Carefully crafted empirical studies have clearly demonstrated that malingering among
insanity defendants is, and traditionally has been, statistically low. Even where it is
attempted, it is fairly easy to discover.... Clinicians correctly classify 92 to 95% of all
individuals as either faking or not faking, especially in cases in which defendants are
faking severe forms of mental illness.
Id. (citations omitted).
102. See, e.g., United States v. Schawar, 865 F.2d 856, 861 (7th Cir. 1989); United States
v. Waddell, 687 F. Supp. 208, 209 (M.D.N.C. 1988). See generally Bruce Winick, Restructuring
Competency to Stand Trial, 32 UCLA L. REV. 921-31 (1985). Winick notes that while incompetency as an issue is raised more often than the insanity defense, courts infrequently find
defendants to be incompetent. Id. When a seriously mentally disordered defendant will not
likely gain competence in the near future, this individual may be committed to a forensic hospital
for an indefinite or prolonged stay. Id. See also CAL. PENAL CODE §§ 1368-69 (1999). Under
§§ 1368-69, the court may begin an incompetency hearing at any time before judgment, suspending criminal proceedings until mental competence is established. Id. During an incompetency
hearing, the court appoints a psychiatrist to examine the defendant. Id. The issue of a defendant's incompetence to stand trial may be raised either by the defense or the prosecution, and a
finding of incompetence requires proof by a preponderance of the evidence. Id. If a jury, rather
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sions, courts often find that the protection of public safety outweighs a
brief deprivation of the individual's liberty, and that hospitalization
gives psychiatric staff the reasonable opportunity to assess the defendant's mental illness and predilection for recidivism (e.g., violence).
Similarly, most states provide for emergency commitment of an individual who is "reasonably believed to be imminently dangerous to
himself or others.""1 3 After O'Connor v. Donaldson,"°4 states have
instituted laws that require a hearing within three to five days of emergency confinement to ensure that such confinement meets constitutional requirements.'
Historically, the individual liberty interests of mentally ill
offenders were more highly valued than they are today because finite
time limits were placed on involuntary commitment terms. More
recently, courts have extended the maximum periods of time that
these offenders can be confined for treatment against their will.0 6
Thus, in Jones v. United States,'°7 the Supreme Court upheld controversial legislation that permitted insanity acquittees to be involuntarily
committed and hospitalized indefinitely beyond the original term of
imprisonment.
Similarly, in Kansas v. Hendricks,"°8 the Supreme Court upheld a
Kansas state law that established involuntary civil commitment procedures for mentally ill offenders classified as sexually violent predators
(SVPs). Critics of state SVP acts based upon Hendricks rationale0 9
than a judge, determines incompetency, a unanimous verdict is required. Id. A judgment of
incompetency may be appealed. Id. See also Medina v. California, 505 U.S. 437 (1992); People
v. Fields, 62 Cal. 2d 538 (1960).
103. PERLIN, supra note 97, at 500.
104. 422 U.S. 563 (1975).
105. See Garrett v. State, 707 So. 2d 273, 275 (Ala. Civ. App. 1997); Cooper v. Oklahoma
517 U.S. 348, 368 (1996) (noting that "due process requires at a minimum a showing that the
person is mentally ill and either poses a danger to himself or others or is incapable of 'surviving
safely in freedom."').
106. See, e.g., Jackson v. Indiana, 406 U.S. 715 (1972).
107. 463 U.S. 354, 370 (1983).
108. 521 U.S. 346, 371 (1997). Because Hendricks admitted that he could not control his
urge to molest children when he became stressed, the Court held the acknowledged lack of volitional control, when coupled with a prediction of future dangerousness based on past offenses,
sufficed to permit Hendricks' involuntary civil commitment. Id. at 360. See, e.g., Schweninger
v. Minnesota, 525 U.S. 802 (1998) (following the Hendricks rationale).
109. Hubbart v. Superior Court of Santa Clara, 58 Cal. Rptr. 2d 268, 279 (Cal. Ct. App.
1996) (noting that the new SVP Act differs from the old Mentally Disordered Offender (MDO)
law in that a person may be categorized as a SVP even in the absence of a conviction; the
categorization may be based solely on a defendant's history of sexually violent behavior and the
diagnosis of a mental disorder that renders that person dangerous to others); In re Linehan, 557
N.W.2d 171 (Minn. 1996); In re Young, 857 P.2d 989 (Wash. 1993). But see Garcetti v.
Superior Court of Los Angeles, 80 Cal. Rptr. 2d 724, 727-28 (Cal. Ct. App. 1998) (noting that
there are procedural safeguards in the probable cause hearing and at trial that ensure the accused
Seattle University Law Review
[Vol. 24:373
vehemently argue that these statutes interfere with a mentally ill person's constitutionally guaranteed liberty rights because they utilize
overly vague criteria that foster the indeterminate commitment of
sexual offenders to potentially lifetime terms.
In contrast to SVP cases, Congress and several states have limited involuntary commitment for other offenses to a period of time
equal to a mentally ill offenders' maximum term if the offender is
either found not guilty by reason of insanity or determined to be
incompetent to stand trial."' While most courts have upheld these
laws,"' some courts have interpreted the statutes to permit extended
With such
and sometimes indeterminate periods of commitment.'
commitment
statutes, the risk of unnecessarily prolonged involuntary
is high, unless the commitment is periodically monitored by the
judiciary in regularly scheduled court hearings."'
b. Protectionof a Mentally Ill Offender's Constitutional
Right to Medical Treatment
In Youngberg v. Romeo," 4 the United States Supreme Court
cautiously recognized an involuntarily hospitalized patient's constitutional right to "minimally adequate" rehabilitation, training, and treatment; freedom from undue restraint; and the basic necessities of life.
Following Youngberg, other state courts have examined the care state
institutions provided to mentally ill offenders in order to ensure that
substantial professional medical judgment was rendered prior to an
offender's commitment." 5 Critics note that Youngberg's "substantial
under the SVP Act is in fact a sexually violent predator).
110. See, e.g., 18 U.S.C. §4244(d) (1994).
111. See, e.g., Hickey v. Morris, 722 F.2d 543 (9th Cir. 1983); State v. Hungerford, 267
N.W.2d 258 (Wis. 1978).
112. See generally Marc Miller, Purposes at Sentencing, 66 S.CAL. L. REV. 413, 435 n.94
(1992). In indeterminate sentencing, the judge issues a "flexible sentence" whereby the length of
imprisonment is given within a minimum-maximum range. Id. The actual time served by the
prisoner, however, is determined by both evidence of good behavior leading to early conditional
release and assessments of the inmate's rehabilitation. Id. See also United States v. Roberts, 915
F.2d 889 (4th Cir. 1990); People v. Bolden, 217 Cal. App. 3d 1591, 266 Cal. Rptr. 725 (Cal. Ct.
App. 1990) (noting that the proper inquiry is to determine whether the defendant's present
condition represents a substantial danger of physical harm to others).
113. See, e.g., Dorman v. State, 457 So. 2d 503 (Fla. Dist. Ct. App. 1984) (upholding a
judge's recommendation of a seven year sentence, exceeding Sentencing Guidelines, for long
term residential care of a mentally disordered sexual offender).
114. 457 U.S. 307 (1982). See also County of Sacramento v. Lewis, 523 U.S. 833, 851 n.12
(1998) (noting that under Youngberg, a mentally retarded plaintiff may claim a violation of substantive due process if he is denied training and rehabilitation by mental institution personnel).
115. See, e.g., United States v. Tennessee, 925 F. Supp. 1292, 1296 n.3 (W.D. Tenn.
1995). The court in United States v. Tennessee noted that the Youngberg case stood, inter alia, for
the proposition that states must provide "adequate food, shelter, clothing, and medical care" to
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professional judgement" standard may prevent inquiry into the adequacy of treatment, halt civil rights litigation, and abandon the values
of therapeutic jurisprudence.116
The Americans with Disabilities Act (ADA) has recently been
hailed as the most extensive governmental effort to date to correct
problems of discrimination against mentally and physically disabled
Americans.117 In Pennsylvania Department of Corrections v. Yeskey,
Justice Scalia pronounced that prisoners are allowed to maintain suits
against a state's department of corrections for discrimination on the
basis of disability under the ADA." 8 Further extending rights of the
mentally ill, in Olmstead v. L. C., the Supreme Court found that institutionalized citizens with mental disabilities are entitled to ADAmandated treatment in an "integrated community setting" rather than
the "unnecessarily segregated" conditions in Georgia State Hospital." 9
This decision was consistent with Congress's goal "to eliminate the
segregation of individuals with disabilities.120
Courts also have recognized an unsentenced mentally ill defendant's right to treatment after being found to be either a sexual offender
or not guilty by reason of insanity.' 2 ' This right to treatment is
derived from the Fourteenth Amendment's guarantee against depriva-
institutionalized patients. Id. (quoting Youngberg, 457 U.S. at 324). According to Youngberg,
"[t]he State also has the unquestioned duty to provide reasonable safety for all residents....
[Residents enjoy] constitutionally protected interests in the conditions of reasonable care and
safety[, and]... reasonable non-restrictive confinement conditions." Id. (quoting Youngberg,
457 U.S. at 324).
116. PERLIN, supra note 9, at 115, 122. Perlin notes that in Wyatt v. Stickney, the court
found that a constitutional right to treatment exists where
[t]he purpose of involuntary hospitalization for treatment purposes is treatment and
not mere custodial care or punishment. This is the only justification from a constituTo deprive
tional standpoint, that allows civil commitment to [a state hospital] ....
any citizen of his or her liberty upon the altruistic theory that the confinement is for
humane therapeutic reasons and then fail to provide adequate treatment violates the
very fundamentals of due process.
Id. See also Olmstead v. L.C., 527 U.S. 581, 605 (1999) ("Each disabled person is entitled to
treatment in the most integrated setting possible for that person-recognizing that, on a case-bycase basis, that setting may be in an institution." (citation omitted)).
117. See generally Michael L. Perlin, The Americans with Disabilities Act and Mentally
Disabled Persons: Can SanistAttitudes Be Undone?, 8 J.L. & HEALTH 15 (1993-1994).
118. 524 U.S. 206, 213 (1998).
119. Olmstead, 527U.S. at602).
120. L.C. v. Olmstead, 138 F.3d 893, 898 (11th Cir. 1998), affld in part, rev'd in part, and
vacated in part, 527 U.S. 581 (1999).
121. See generally United States v. Ecker, 543 F.2d 178, 208 (D.C. Cir. 1976) (emphasizing
the importance of a patient's right to treatment and noting that if conditional release is needed to
meet treatment objectives, the court should develop criteria for determining conditions under
which a defendant may become eligible for such conditional release); Millard v. Cameron, 373
F.2d 468 (D.C. Cir. 1966).
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[Vol. 24:373
tion of life, liberty, or property without due process of law. 122 Similarly, for sentenced mentally disordered prison inmates, the Eighth
Amendment-which bars cruel and unusual punishment-gives
inmates the right to treatment, 123 including access to psychological or
psychiatric services when medically necessary.
Judges may also require that correctional facility treatment plans
be implemented to ensure that inmates take their prescribed medications, therapeutic drug blood levels are assessed, patient requests for
medical services are timely handled, medications are not discontinued
without client interviews, psychiatric decisions are not ignored by
nonmedical personnel, individual and group therapy is provided, and
regular monitoring of treatment is instituted.'2 4
Furthermore, a court may require that states provide the following constitutional protections for mentally disordered inmates in
correctional settings: adequate systems for identifying and monitoring
mentally ill patients, referral rules that ensure inmates can make their
medical needs known to staff, communication procedures that guarantee mental health staff regular access to mentally ill offenders, and
management and care
promulgation of rules that specifically pertain to
125
inmates.
ill
mentally
of
of the special problems
122. See County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998) (observing that pretrial detainees retain due process rights under the Fourteenth Amendment that are at least as
great as the Eighth Amendment rights granted to convicted prisoners); Bell v. Wolfish, 441 U.S.
520, 546 (1979) (noting that "convicted prisoners do not forfeit all constitutional protections by
reason of their conviction and confinement in prison.").
123. See generally Lewis v. Griffin, 376 S.E.2d 364 (Ga. 1989); Villarreal v. Thompson,
920 P.2d 1108, 1110 (Or. App. 1996) (holding plaintiff may assert a claim against a correctional
facility if, under the Eighth Amendment, plaintiff shows a "deliberate indifference to serious
medical needs.").
124. See, e.g., Belcher v. City of Foley, 30 F.3d 1390, 1397-99 (11th Cir. 1994) (noting that
prison guards will incur legal liability if they exhibit deliberate indifference to the serious medical
and psychiatric needs of a prisoner, including indifference to the high probability that a prisoner
may commit suicide); Coleman v. Wilson, 912 F. Supp. 1282, 1298 n.10 (E.D. Cal. 1995).
Courts have focused on six components for evaluating a "minimally adequate prison mental
health care delivery system." Belcher, 30 F.3d at 1398. These components are as follows:
(1) a systematic program for screening and evaluating inmates to identify those in
need of medical care; (2) a treatment program that involves more than segregation and
close supervision of mentally ill inmates; (3) employment of a sufficient number of
trained mental health professionals; (4) maintenance of accurate, complete and
confidential mental health treatment records; (5) administration of psychotropic
medication only with appropriate supervision and periodic evaluation; and (6) a basic
program to identify, treat, and supervise inmates at risk for suicide.
Id. at 1398 n.10.
125. See, e.g., Greason v. Kemp, 891 F.2d 829, 833-37 (11thCir. 1990) (noting an established constitutional right to psychiatric care); Coleman v. Wilson, 912 F. Supp. 1282, 1298
(E.D. Cal. 1995) (noting that an Eighth Amendment violation occurs when defendants act with
"deliberate indifference" to mentally ill offenders' "serious medical needs"). According to the
Coleman court, "deliberate indifference is established 'if the failure to treat a prisoner's condition
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Judges may periodically monitor correctional facility environments to ensure that the conditions of incarceration are conducive to
treatment objectives. 126 Understandably, courts have generally rejected excuses such as a lack of available funding, overcrowding, a
need for prison security alone, or even a good faith effort to obtain
treatment resources when such excuses are used to justify a correctional facility's decision to 2withhold
necessary diagnosis and treatment
17
inmates.
ill
mentally
from
IV. SUCCESSFUL STATE SPECIALTY COURT EXPERIENCES
Ongoing nationwide discussion of the benefits of state specialty
128
courts has resulted in the successful formation of adult drug courts,
family courts,"' juvenile drug courts, 13 teen courts,13 ' domestic violence courts, 32 and business courts. 3 3 Since state judiciaries historcould result in further significant injury or the 'unnecessary and wanton infliction of pain."' Id.
See also Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz. 1993).
126. See, e.g., Smith v. Jenkins, 919 F.2d 90 (8th Cir. 1990); Coleman, 912 F. Supp. at 1320
(noting that during incarceration, mentally disordered prisoners are treated punitively without
due consideration for their mental illness because custodial staff lack appropriate training in
recognizing and handling such disordered inmates); Casey, 834 F. Supp at 1477.
127. See, e.g., Greason, 891 F.2d at 836 (noting that the failure of prison staff members to
notify officials of a mentally disordered person's suicidal state of mind can constitute "deliberate
indifference" resulting in liability, perhaps constituting an Eighth Amendment violation);
Camilo-Robles v. Zapata 175 F.3d 41, 44 (1st Cir. 1999) ("[L]iability attaches if a responsible
[correctional facility] official supervises, trains, or hires a subordinate with deliberate indifference
toward the possibility that deficient performance of the task eventually may contribute to a civil
rights violation."); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556 (1st Cir. 1988).
128. See generally James R. Brown, Drug Diversion Courts; Are They Needed and Will They
Succeed in Breaking the Cycle of Drug-Related Crime?, 23 NEW ENG. J. OF CRIM & CIV. CONFINEMENT 63, 84, 93-98 (1997) (describing drug court objectives and the functioning of two
courts in Miami and Boston); John S. Goldkamp, The Drug Court Response: Issues and Implications for Justice Change, 63 ALB. L. REV. 923 (2000).
129. See Monrad G. Paulson, Juvenile Courts, Family Courts, and the Poor Man, 54 CAL.
L. REV. 694, 701 (1966) (emphasizing that the poor disproportionately flood family and juvenile
courts, indicating that poverty is accompanied by societal maladaptations that necessitate judicial
intervention); Paul A. Williams, A Unified Court for Missouri, 63 UMKC L. REV. 383, 383-84
(1994) (describing one state's attempt to build a unified family court). See also AMERICAN BAR
ASSOCIATION CENTER ON CHILDREN AND THE LAW, A JUDGE'S GUIDE TO IMPROVING THE
LEGAL REPRESENTATION OF CHILDREN 1, 2-3 (Kathi L. Grasso, ed., 1998). This project of
the American Bar Association focuses on "how courts can better access, utilize, and support
lawyers appointed to represent children." Id. Judges and attorneys may participate in an e-mail
discussion group regarding ABA National Court Improvement Activities through the e-mail
address: [email protected]. It would be a worthwhile endeavor to develop a corresponding publication designed to aid judges in improving the legal representation of the mentally ill.
130. See Marily Roberts et al., The Juvenile Drug Court Movement, Fact Sheet 59 (Office of
Juv. Just. and Delinquency Prevention), Mar. 1997 at 1,2 (describing juvenile drug courts).
131. See Allison R. Shiff & David B. Wexler, Teen Court: A Therapeutic Justice Perspective,
4 CRIM. L. BULL. 342, 343 (1996) (noting the existence of over 150 teen courts designed to hear
misdemeanor cases as an alternative to juvenile court).
132. See Art Barnum, DuPage Total Crimes Drop, But Robberies Increase 4901, CHI. TRIB.,
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[Vol. 24:373
ically have had greater experience with family and drug courts than
with mental health specialty courts, these two courts will be introduced as potential models for establishment of the more novel mental
health specialty courts.134
A. State Drug Courts
State drug courts were instituted as part of a nationwide program
known in the media as the "War on Drugs," a term popular in the
1980s to describe the governmental response to America's drug crisis.
Alarming statistics revealed that although the United States possessed
only 4.5% of the global population, 60% of illegal drugs were consumed and sold here. 13 5 Notwithstanding an acknowledged link
between drugs and crime, the federal government and drug courts
recognized that it was cost effective to direct nonviolent drug offenders
away from incarceration and toward treatment programs, with the goal
of reintegrating treated drug addicts into society. 136 Drug courts were
created "out of a sense of frustration that law enforcement and imprisonment policies were not having the impact on drug supply or
demand that proponents of the war against drugs of the 1980s had
hoped for." 37 These courts have received tremendous public support,
are over 425 drug courts in operation in the United States
and there
38
today.
The United States government's initial response in its "War on
Drugs" was to invest considerable financial resources in law enforcement, arresting and imprisoning offenders. This approach initially
appeared successful in controlling drug crimes, with an investment of
Apr. 27, 1997, at 1 (documenting the creation of a unique domestic violence court to handle
these cases).
133. See generally Ad Hoc Committee on Business Courts, Business Courts: Towards a
More Efficient Judiciary, 52 BUS. LAW. 947, 961 (1997) (suggesting the creation of additional
business courts, building on successes experienced with previously established business courts);
Margaret M. Eckenbrecht, A Commercial Venture, A.B.A.J., Jan. 1996, at 35 (noting fifteen
states either possess or plan to establish business courts).
134. See Brown, supra note 128, at 99 (maintaining that drug courts may also serve as
prototypes for domestic violence courts that also provide intensive client treatment).
135. See Panel Discussion, The Druggingof the Courts: How Sick Is the Patientand What Is
the Treatment?, 73 JUDICATURE 314 (1990).
136. See Brown, supra note 128, at 66 n.21 (citing BUREAU OF JUSTICE STATISTICS, U.S.
DEP'T OF JUSTICE, FACT SHEET: DRUG-RELATED CRIME 1, 5 (1994)) (noting that an esti-
mated 17% of state prison inmates reported committing offenses to finance their drug habits);
Roberts et al., supra note 130, at 6. As many as 50% of prison inmates reported use of drugs one
month prior to the offense. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
DRUGS AND CRIME FACTS 1993 5 (1994).
137. Roberts et al., supra note 130, at i.
138. Goldkamp, supra note 128, at 923 (noting the existence of over 425 established drug
courts, with other drug courts currently in the planning stage).
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$1.5 billion in 1981 expanding to $13.1 billion in 1995.139 As a direct
result of these expenditures, over one million drug arrests were made
in 1993, compared to less than 700,000 in 1983.40
However, imprisonment of drug offenders has contributed to
overcrowding the prison system,14 ' and the federal system is now operating at 125% of capacity. Forty-one state systems operate at or above
capacity. 42 As a direct result of state prison overcrowding, inmates
In accepting inmate transfers,
are often transferred to local jails.'
jails often must either release previously held offenders or reduce
incarceration rates of minor offenders, actions that both have unavoidable adverse repercussions.
Unfortunately, the imprisonment of drug offenders, while resulting in about a one-third increase in arrests, has not reduced the
incidence of drug-related crime.' 44 For example, from 1980 to 1990,
California's prison population grew by 450%, with no significant
impact on the number of crimes committed. 141 While incarceration
temporarily deters an imprisoned inmate from recommitting a drugrelated offense, statistics show that untreated drug addicts generally
continue to commit an enormous number of crimes to support their
habits, such as robbery, assault, burglary, auto theft, and shoplifting.' 46 One commentator noted, "without treatment, 90% of incarcerated drug offenders will renew a career of addiction and crime
,,147
Since the War on Drugs has cost
within three years of release.
over $300 billion dollars to date 4 ' and has not had a major impact on
139. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FACT SHEET: DRUG
DATA SUMMARY 5 (1995).
140. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE
UNITED STATES 1994 tbl. 1 (1995) (noting 1,126,300 arrests for drug abuse in 1993, compared
to 661,400 in 1983).
141. See ALLEN J. BECK & DARRELL K. GILLIARD, U.S. DEP'T OF JUSTICE, PRISONERS
IN 1994 4 (1995).
142. See id. at 8.
143. See id. at 6.
144. See generally Steven Belenko et al., The Effects of Legal Sanctions on Recidivism in Special Drug Courts, 17 JUST. SYS. J. 53, 57 (1994); Jeff Potts, American Penal Institutions and Two
Alternative Proposalsfor Punishment, 34 S.TEX. L. REV. 443, 457 (1993).
145. See David C. Leven, Curing America's Addiction to Prisons, 20 FORDHAM URB. L.J.
641, 649 (1993) (noting that index crimes reported by California police almost doubled in the
1980s, with a corresponding population increase of only 25%).
146. See NATIONAL INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE, SEARCHING FOR
ANSWERS, ANNUAL EVALUATION REPORT ON DRUGS AND CRIME: 1992 54 (June 1993)
(noting a 1980s study showed "573 substance abusers in Miami committed 6,000 robberies and
assaults, 6,700 burglaries, 900 auto thefts, and 25,000 acts of shoplifting.").
147. Brown, supranote 128, at 81 n.180 (citing Fred Settleberg, Oakland Tries a Carrot and
Stick Approach to Keeping First Time Drug Offenders Out of Jail, CALIF. LAW., May 14, 1994, at
93).
148. See Mathea Falco, Toward a Rational Drug Policy, Toward a More Effective Drug
Seattle University Law Review
[Vol. 24:373
the incidence of drug-related crime, treatment of drug abusers has
been advocated as a logical, cost-effective alternative.149
Moreover, prison drug rehabilitation programs have lacked the
intensity of treatment required for success, providing a token "few
hours per week" of actual treatment, which has been deemed grossly
In addition, the commitment of financial resources to
inadequate.'
prison treatment programs has not been commensurate with the flood
of drug offenders coming into correctional facilities.' 51
Thus, in the 1980s, states experimented with the concept of drug
courts to manage the increasing number of drug abuse cases and place
offenders in effective drug treatment programs."5 2 Drug courts have
promoted a reduction of the financial and societal costs of incarceration through the monitoring of nonviolent drug abusers. Proponents
of these courts predict that rehabilitation results in lowered recidivism
or reconviction crime rates for these offenders, reducing court caseloads and correctional facility costs."5 3
A primary goal of drug courts is to monitor the appropriate treatment and rehabilitation of drug abusers, accelerating their recovery.5 4
After successful completion of an individual's treatment, the drug
court possesses the authority to dismiss or mitigate charges and sentences; this serves as an added motivation for addicts to comply with
Policy, 1994 U. CHI. LEGAL F. 9, 9 (1994) (stating that 375,000 newborn babies were adversely
affected by exposure to their mother's use of illegal drugs). See also Elaine R. Jones, The Failure
of "Get Tough" Crime Policy, 20 U. DAYTON L. REV. 803, 804 (1995) (commenting that the
average cost of housing an inmate is $23,000 per year); Carol Vance, To Achieve Law and Order,
People Must Be Changed, PROSECUTOR, May/June 1995, at 28 (noting prison facility construction costs and costs of housing an inmate for a 30 year period are approximately $1 million per
inmate).
149. See Falco, supra note 148, at 16. See also JEAN WELLISCH ET AL., U.S. DEP'T OF
JUSTICE, DRUG ABUSING WOMEN OFFENDERS:
RESULTS OF A NATIONAL SURVEY 1, 5
(1994) (noting intensive treatment of female drug abusers).
150. See WELLISCH ET AL., supra note 149, at 5 ("[T]he effectiveness of many surveyed
programs that provide treatment of relatively short duration to a population with multiple needs,
particularly programs that provide only a few hours per week is questionable.").
151. See Brown, supra note 128, at 82 n.184 (citing Gregory P. Falkin et al., Drug Treatment in the Criminal Justice System, 58 FED. PROBATION 31, 32 (1994) (observing that the
number of cocaine abusers who need treatment is 16 times greater than the number of abusers
who are actually being treated)).
152. See Brown, supra note 128, at 83-84 (citing Robert C. Davis et al., Court Strategies to
Cope with Rising Drug Caseloads, 17 JUST. SYS. J. 1, 2 (1994)). See also CAROLYN S. COOPER &
JOSEPH A. TROTTER, JR., THE AMERICAN UNIVERSITY DRUG CASE MANAGEMENT AND
TREATMENT INTERVENTION STRATEGIES IN THE STATE AND LOCAL COURTS 20 (1994).
153. See Brown, supra note 128, at 84 n.206 (citing JAMEY H. WEITZMAN, DRUG
COURTS:
A MANUAL FOR PLANNING AND IMPLEMENTATION (Robin J. Kimbrough ed.,
1995)).
154. See COOPER & TROTTER, supra note 152, at 21.
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treatment programs. 55 Proponents optimistically maintain that drug
tribunals have successfully reduced the incidence of drug abuse reoffenses, lowered drug-related criminal activity, diminished the number
of prisoners incarcerated in prisons and jails, reduced court caseloads,
and obtained considerable cost reductions throughout the criminal
justice system.' 56 However, independent investigation is necessary to
determine whether drug courts have fulfilled these expectations.
B. State Family Courts
State family courts first originated in the United States at the
turn of the nineteenth century, about the same time as juvenile courts,
but long before drug courts.' Like drug courts, family courts created
a nontraditional, nonadversarial tribunal to resolve a family's legal
issues efficiently and quickly, with a minimum of trauma to children
and families in crisis.' 8 As a result of relatively recent support by the
American public, specialized family courts or divisions are now used
in diverse forms in several states. In 1996, the American Bar Association funded a two-year project designed to facilitate the establishment
of bar
of unified family courts in six cities."5 9 A recent conference
160
presidents also advocated the establishment of these courts.
At present, five states utilize a separate family court for family
law cases,' 6 ' five other jurisdictions employ separate trial divisions for
these matters, 62 and one state possesses a family department within
the trial court.'63 In order to handle cases in different parts of their
155. See Peter Finn & Andrea K. Newlyn, Miami Drug Court Gives Drug Defendants a
Second Chance, 77 JUDICATURE 268, 269 (1994).
156. See generally JAMEY H. WEITZMAN, DRUG COURTS: A MANUAL FOR PLANNING
AND IMPLEMENTATION (Robin J. Kimbrough ed., 1995).
157. See Leonard P. Edwards, The Juvenile Court and the Role of the Juvenile Court Judge,
43 JUV. & FAM. CT. J. 1 (1992) (documenting the history, laudable objectives, and evolution of
juvenile courts); Herma Hill Kay, A Family Court: The CaliforniaProposal, 56 CAL. L. REV.
1205 (1968).
158. See H. TED RUBIN & VICTOR EUGENE FLANGO, COURT COORDINATION OF
FAMILY CASES 64-65 (1992).
159. See R. William Ide III, ABA News Center-From the Chair, UNIFIED FAM. CHRON.,
May 1997, at 2. See also Patricia G. Barnes, It May Take a Village... or a Specialized Court to
Address Family Problems, A.B.A.J., Dec. 1996, at 22.
160. See Mary Wechsler, Unified Family Courts, THE CONFERENCE CALL, Summer 1995,
at 1. The A.B.A.'s two-year project is entitled Communities, Families, and the Justice System.
Id.
161. States that have separate family courts include Delaware, New York, Rhode Island,
South Carolina, and Vermont. See, e.g., DEL. CODE ANN. tit. 10, §§ 901-973 (1974 & Supp.
1996); N.Y. FAM. CT. ACT § 111-1211 (McKinney 1987 & Supp. 1997).
162. These states are Florida, Hawaii, New Jersey, Washington, and the District of
Columbia. See, e.g., WASH. REV. CODE ANN. §§26.12.010-26.12.240 (West 1997).
163. Massachusetts utilizes this unique approach. See MASS. GEN. LAWS. Ch. 211B, § 1
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respective states, fourteen states place geographical restrictions on
family courts or court divisions"'; nine other states plan to or will
experiment with family court programs in the near future.1 65 Two
other states have received legislative approval to establish these
courts, 166 leaving fourteen states that continue to handle family law
cases solely within general trial court proceedings.
A judge's term within a family court may vary significantly.
While some states' family court judges receive lifetime appointments,167 other states permit temporary judicial assignments of limited
duration. Detractors maintain that these rotating judges possess less
knowledge of this specialized area of law than is necessary for just and
efficient adjudication of cases.168
Criticisms of the traditional trial court forum include the following: (1) family matters are often burdensomely expensive and timeconsuming; some disputes are tried more than once, or are tried before
different judges--or even different courts-in a fragmented, rather
than unified, approach, (2) children may be inadvertently subjected to
trauma, (3) judges hearing family law cases may lack understanding,
interest in a given dispute, or the temperament to hear these cases, and
(4) courts inadequately address needs of the poor, who lack financial
resources to hire an attorney and must represent themselves. 169 Court
reform has established state family courts that specifically address
some of these disadvantages of traditional trial court fora. Thus, both
family and drug specialty courts provide successful foundational
models on which to build the bases of mental health courts.
V. CREATING AN EXEMPLARY WORKING MODEL OF NOVEL
MENTAL HEALTH SPECIALTY COURTS
Although there has been a paucity of published information on
the operations of the handful of newly established state mental health
(1989 & Supp. 1996).
164. These states are Alabama, Colorado, Kansas, Louisiana, Mississippi, Missouri,
Nevada, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, and Wisconsin. See,
e.g., OR. REV. STAT. § 3.405 (1995).
165. These states are California, Georgia, Illinois, Kentucky, Maine, Maryland, Michigan,
New Hampshire, and Virginia. See, e.g., CAL. FAM. CODE §§ 2000-20043 (West 1994 & Supp.
1997).
166. These are Michigan and Virginia. See, e.g., MICH. COMP. LAWS ANN. § 600.1001
(West Supp. 1997).
167. Judges in Massachusetts and Rhode Island serve life terms. See, e.g., R.I. GEN LAWS
§ 8-16.1-7 (Supp. 1996).
168. In the District of Columbia, judges remain in the Family Division for nine months.
169. See ROBERT C. MURPHY, REPORT OF THE FAMILY DIVISION REVIEW COMMITTEE 6-7 (1993) (describing results of a study of Maryland's family law court system).
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courts (MHCTs) in the United States, 170 more detailed information
regarding the function of specialized courts has been generated in the
context of drug and family courts. News analysts have noted that
recently established MHCTs have been "loosely modeled" after drug
courts or other specialty courts.'17 However, Judge Harold E. Shabo,
Supervising Judge of the Mental Health Departments of the Superior
Court of Los Angeles (referred to as "Department 95 "0 172) and supervisor of associated Los Angeles County court staff, has provided
invaluable information regarding the operation of this California
court, the oldest and most established existing independent MHCT in
the United States." 3 In addition, Judge Ginger Lerner-Wren of Florida's Broward County MHCT has recently received prominent news
media coverage for pioneering what has been publicized as another
"one-of-a-kind court" designed to "steer[] nonviolent mentally ill
defendants into care rather than jail."' 74 The Florida MHCT now
hears cases involving 450 defendants annually. 7 ' Thus, this Article's
advocacy of the establishment of mental health specialty courts will
rely heavily upon analogies to existing state specialty courts (e.g., fam170. But see CAROL A.B. WARREN, THE COURT OF LAST RESORT: MENTAL ILLNESS
AND THE LAW (1982); Debra Baker, A One-of-a-Kind Court May Offer the Best Hope for Steering Nonviolent Mentally Ill Defendants into Care Instead of Jail,A.B.A.J., June 1998, at 20.
171. Mental Health Courts Worth a Look, THE DESERT NEWS (Salt Lake City), Aug. 31,
1999, at 1.
172. See Raj Kamal Jha, Murderers' Psychiatrist Says Everyone Can Get the Urge to Kill,
L.A. TIMES, Oct. 29, 1989, at 2 (noting that until the late 1960s, Department 95 of the Los
Angeles County MHCT "had its offices in the psychiatric ward at County-USC."). The Los
Angeles MHCT, with a supervising judge and other bench officers holding hearings in three
courtrooms, is at least thirty years old, making it the first MHCT in the nation. Dr. Ronald
Markman's experiences in the Los Angeles MHCT as Southern California's most renown
forensic psychiatric expert is recounted in RONALD M.D. MARKMAN & DOMINIC BOSCO,
ALONE WITH THE DEVIL (1989).
173. See generally WARREN, supra note 170. Warren documented some of the historical
operations of the Los Angeles County MHCT from sociological and philosophical viewpoints,
with data collections over a period of seven years. She states,
Metropolitan Court [(now known as the Los Angeles County MHCT)] stands alone
in a dingy, dirty part of town next to the railroad tracks. It was once a [pickle factory]
warehouse; it still looks like one. Into the court annually come thousands of persons,
most of them seeking release from involuntary confinement in mental hospitals, but
some of them involved in narcotic hearings, mentally disordered sex offender misdemeanor hearings (MDSO), not guilty by reason of insanity hearings (NGI), and other
matters at the intersection of the mental health and criminal justice systems.
Id. at 122. Recently, the Superior Court considered constructing a new building to house the
L.A. MHCT. However, funding cutbacks and the San Fernando Valley earthquake consumed
monies allocated for this project. The Edelman Court in Monterey Park was recently constructed for a specialized juvenile court, however, leading some to believe that a new MHCT
structure will also be built someday.
174. Baker, supra note 170, at 1.
175. See Bill Douthat, Group Weighs Need for Court for Mentally Ill Defendants, PALM
BEACH POST, June 22, 1999, at 2B.
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ily and drug) and on supplemental information derived from the Los
Angeles and Broward County MHCT experiences.
A. The General Need for Specialized State Courts Such as Mental
Health Courts (MHCTs)
Court reformers often justify the compelling need to establish
specialized courts by noting "it is clear that in almost every field of
endeavor and in every profession, the need to master a body of knowledge and to gain experience in working with that body of knowledge
has created a narrower focus over time for those who work within
'
At times, society has criticized spemore broadly defined fields."176
cialized judges as being less adaptable and perhaps less qualified than
generalist judges.' 77 However, this criticism is generally unfounded.
The specialist judges' knowledge of the depth and complexity of difficult areas of law makes them uniquely trained and qualified to resolve
these issues efficiently and judiciously.
Permanent assignments of judges to specialty courts (e.g., family
courts or MHCTs), rather than utilizing temporary rotating generalist
judges in these courts, 78 permits specialist judges to master the
nuances of a complex body of law.'79 When these judges "see the
same issues repeatedly and thus have both the time and the motivation
to do the research and thinking needed to resolve them accurately,"' 8 °
cases may be rightly decided more often. A specialized MHCT judge
may avoid the criticism of being overly myopic by keeping lines of
communication open with generalist colleagues who may provide him
or her with more panoramic viewpoints.' 8 ' Specialist judges must vigilantly guard against any tendency to dismiss the due process rights of
litigants out of an insensitivity to a client's right to his day in court;
judges must also watch that they do not give inflexible responses to
some parties who repeatedly appear before the court. 82 Specialist
176. Ad Hoc Committee on Business Courts, Business Courts: Towards a More Efficient
Judiciary, 52 Bus. LAW. 947, 948 (1997).
177. See Jeffrey W. Stempel, Two Cheers for Specialization,61 BROOK. L. REV. 89, 89-91
(1995).
178. See id.at 127.
179. See Rochelle C. Dreyfuss, Specialized Adjudication, BYU L. REV. 377, 378, 409
(1990) ("The more intricate the law, the more likely it is that a generalist will get things wrong,
confuse matters, and encourage additional litigation. The more complicated the facts of a case,
the more the judge must master before the case can be decided at all.").
180. See Rochelle C. Dreyfuss, Forums of the Future: The Role of Specialized Courts in
Resolving Business Disputes, 61 BROOK. L. REV. 1, 16 (1995).
181. See id. at 17.
182. See id. at 21 ("[R]epeat players have an advantage over one-time litigants. This
problem is exacerbated on a specialized bench, where repeaters sometimes know all the judges,
are well-acquainted with the eccentricities of the court's local rules and specialized law.... One-
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judges should guard against even the appearance of unfairness by
ensuring that the constitutional rights of defendants are constantly
monitored and preserved in all judicial proceedings.
B. GeneralEvaluationof the Effectiveness of Court Reform
A specialty court's success may be measured by examining its
decision-making quality, judicial efficiency, and retention of due
process rights.' 83 Decision-making quality may be assessed objectively
by determining whether the court in question is consistent and
accurate in its decisions, including policy determinations, when the
facts and law of cases present similar circumstances.' 8 4
Judicial efficiency and economy may be evaluated using such
factors as the length of litigation and the court's docket clearance rate,
with consideration given to the number of judges and court appearDue process requirements may
ances required for case resolution.'
be monitored to determine whether proper notice, an opportunity to
be heard, and a neutral adjudicator are provided to defendants. 6
Objective public opinion polls may be taken to assess whether the
specialty court is viewed as having achieved societal objectives and
met the therapeutic needs of mentally disordered offenders; polls may
also be used to determine whether the court is held in high esteem by
lawyers, academics, and members of the judiciary. 87
C. CriticalRole of the Mental Health Court (MHCT)Judge
Debra Baker describes the plight of mental health offender Tracey Harris, a misdemeanant charged with loitering in front of a
convenience store near his group home residence. 8 ' Tracey entered
Judge Ginger Lerner-Wren's Florida mental health courtroom one
day "fighting off the sheriff's escort who had a firm grip on his arm,"
and stopped suddenly upon noticing the presence of his mother and
social worker. "With his head hung to the side and his words slurring,
time litigants operate at a severe disadvantage."); Interview with Judge Harold E. Shabo in Los
Angeles, Cal. (Feb. 12, 2000) (noting potential problems specialist MHCT judges may encounter). While generalist judges may also experience similar tendencies to "short-cut" the judicial
process, specialist judges, seeing "repeaters" more often, should possess greater cognizance of the
potential for judicial abuse.
183. See Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000). See
also Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59
BROOK. L. REV. 761, 774 (1993) (arguing for accurate, efficient litigation procedures).
184. See Dreyfuss, supra note 180, at 12-13.
185. Seeid. at l4.
186. Seeid. at 15.
187. Seeid. at ll.
188.
See Baker, supra note 170, at 3.
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he held his shackled wrists out toward them and said, 'look what
they've done to me. I'm in handcuffs. It's not right."" 9 Debra Baker
observed that generalist judges in state trial courts might easily view
Tracey's conduct and agitation as constituting both a threat to public
safety and contempt of court, warranting additional imprisonment in
the county lockup. 9 '
However, to a specialist MHCT judge, experienced in handling
cases concerning nonviolent mentally ill clients charged with committing minor misdemeanor offenses, Tracey Harris' conduct is more
comprehensible.' 9 ' Judge Lerner-Wren's patient questioning revealed
that Harris' loitering was "not the result of a criminal mind but
instead of his mental condition," ' 92 posing no danger to public safety.
Thus, continued treatment for Harris was justly ordered rather than
imprisonment.
Florida's Howard Finkelstein, a chief assistant public defender,
commented, "Mentally ill people who commit misdemeanors
shouldn't be in jail. It's not humane, it's not right, it's not costeffective. '""' Judge Lerner-Wren observed that her MHCT operates
189. Id. at 1. A Brazilian cardiologist shot himself and his 5 year old son because he was
unable to find employment as a doctor after immigrating to the United States. See Larry Altman, RB Murder, Suicide Shake Up Neighbors Father Shoots Son, Himself to Death; 2nd Boy
Wounded, DAILY BREEZE, August 8, 2000, at Al; Jessica Garrison, Man Kills Son, Self in
Redondo Beach, L.A. TIMES, Aug. 8, 2000, at B3. Perhaps community or MHCT diversionary
treatment programs might have prevented this or similar tragedies.
190. See Baker, supra note 170, at 1. See also PERLIN, supra note 11, at 663-70 and accompanying footnotes. Perlin observes that trial court judges may use certain connotative terms
(e.g., "psycho-babble" or "headshrinkers") that reveal their subconscious prejudices against
mentally ill offenders, heuristic reductionist thought patterns, or inability to assess the needs of
such defendants objectively. Id. Perlin notes that some generalist judges may display impatience
towards mentally disordered defendants, incorrectly attributing their plight to "weak character or
poor resolve." Id. Such judges may believe mentally ill defendants fabricate their symptoms,
and these judges may view expert testimony relating to predictions of dangerousness as more
accurate than the psychiatric literature warrants. Id. Moreover, generalist judges may inadvertently allow uncritical acceptance of psychiatric expert testimony, distortion of statutory and case
law standards, and deprivation of a defendant's civil liberty because these judges lack an understanding of the intricacies of mental health science and law. Id. A judge's subconsciously
distorted thinking may adversely affect the court's decisions regarding a client's involuntary civil
commitment, refusal to take medications, accuracy of psychiatric diagnosis, or defenses of insanity or incompetence to stand trial. Id.
191. Mental Health Courts Worth a Look, DESERT NEWS (Salt Lake City), Aug. 31, 1999,
1 (observing that MHCTs may hear misdemeanor cases on an expedited basis, diverting
mentally ill offenders into needed outpatient or inpatient treatment programs).
192. Baker, supra note 170, at 3.
193. Douglas C. Lyons, Court Will Handle Cases for Mentally Ill; Hundreds Might Get
Treatment Sooner, SUN-SENTINEL (Ft. Lauderdale), May 23, 1997, at 1B; See also Personal
Communication with James Preis (Mar. 16, 2000) (stating that a preferable long-term societal
solution would be to decriminalize the mentally ill with diversion of clients directly into treatment programs, perhaps obviating the need for MHCTs).
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under the rubric of the therapeutic jurisprudential concept that "the
court could do more than just be a mere adjudicator of charges, but
could actually take an active role in the treatment of people coming
before it."' 94
The mental health court (MHCT) judge must be uniquely qualified for this position of responsibility. The model MHCT judge
should possess the following attributes: (1) appropriate judicial temperament, (2) compassion and sensitivity to the client's19 therapeutic
needs, (3) tolerance for remission, (4) knowledge of the DSM-IV
categories of mental illnesses and their treatment, (5) an ability to
objectively assess the value of expert medical testimony 96 and scientific literature, (6) complete understanding of medication effects, (7) a
willingness to effect therapeutic change in law enforcement procedures, (8) excellent interpersonal skills, (9) the willingness to represent
the goals of therapeutic jurisprudence to the public, (10) a philosophical commitment to treatment and rehabilitative objectives, (11) the
perception to recognize preconceptions or biases in him or herself and
others, and (12) the capability to efficiently supervise court-mandated
97
treatment plans. 1
For example, prior to serving on Broward County's MHCT,
Judge Lerner-Wren's background in mental health and disabilities law
included working with indigent clients.'9 8 She also exhibited extraordinary "energy and zeal for the job,"'99 even hearing additional
194. Good Morning America I, supra note 5 (noting that "attorneys, case managers, and
clinicians try to come up with a treatment instead of a jail sentence" for those who are "willing to
accept help").
195. Mental health court inmates, like drug court prisoners, are often referred to as
"clients" rather than "prisoners" or "inmates" to emphasize implementation of the therapeutic,
rather than punitive, objectives of the justice system.
196. PERLIN, supra note 9, at ix (noting Myron Orfield's observation that "89% of judges,
public defenders, and prosecutors questioned (including 77% of judges) believed that police officers fabricate evidence in case reports at least 'some of the time' and that a staggering 92%
(including 91% of judges) believe that police officers lie in court to avoid suppression of evidence
at least 'some of the time."'). See also Myron W. Orfield, Deterrence, Perjury, and the Heater
Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 100-07
(1992).
197. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000) (noting
that MHCT judges should have focused training in issues concerning mentally disabled defendants, experience as an adjudicator of cases pertaining to mental health issues, and personal
attributes necessary to competently perform their duties).
198. Baker, supra note 170, at 5. The term "clients" is used with the traditional denotation,
compared to the term "mentally disordered clients," which refers to "offenders" or "defendants."
199. Ardy Friedberg, Judge a 'Perfect Fit'for Specialty Court, SUN-SENTINEL (Ft. Lauderdale), June 17, 1997, at 4B (noting that Judge Lemer-Wren is well-suited for the Broward
County MHCT).
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[Vol. 24:373
MHCT cases on her lunch hour in the MHCT court (apart from her
regularly scheduled court docket). °°
Task forces may screen for judges with practical experience in
21
adjudicating cases involving indigent mentally ill or disabled clients
to ensure that the objectives of the MHCT in obtaining accurate
patient diagnosis and treatment and providing rehabilitative services
are met. Moreover, the MHCT judge should be willing and able to
take an active role in the management and monitoring of the mentally
ill offender's case.
MHCT judges should exhibit sufficient fortitude to resist public
pressure or a desire for political expediency in incarcerating the mentally ill. Lotus McClure, former director of the jail and prison committee of a local chapter of the National Alliance for the Mentally Ill
(NAMI), says,
People want the mentally ill locked up. Judges think they're
don't
doing a public service by locking them up, but they2 really
2
belong in jail. They belong in a psychiatric hospital. 1
Since greater than one-fifth of jails lack even rudimentary mental
health services, patients exhibit further deterioration with regularity,
leading some inmates to commit suicide." 3 Law enforcement, correctional facilities, hospitals, prosecutors, public defenders, and family
members may refer such clients to the MHCT." 4
Judges and governmental task forces who wish to establish a
MHCT in their state should consider the following suggestions: (1)
begin with less complex misdemeanor cases and gradually transition to
more complex felony cases; (2) establish organized procedures for law
enforcement and jail staff to recognize potential candidates for the
MHCT;211 (3) devise probationary and conditional release plans and
200. Addressing the Issue of Mentally Ill Inmates with a Specialized Court, CORRECTIONS
PROFESSIONAL, Aug. 8, 1997, at 2 [hereinafter, Specialized Courtfor Mentally Ill].
201. Lyons, supra note 193, at lB.
202. Marino, supra note 4, at 1. See Baker, supra note 170, at 2. NAMI supports the
MHCT specialty court's mandate to divert mentally ill offenders from jails and prisons into clinical treatment programs with rehabilitation objectives. Id. According to a joint report of NAMI
and the Public Citizen's Health Research Group, approximately one-third of jails surveyed
housed seriously mentally ill individuals who had no criminal charges filed against them, and
most other jails held seriously mentally ill persons on minor charges, such as "disorderly conduct, trespassing, and drunkenness." Id.
203. See Baker, supra note 170, at 2.
204. See infra Appendix A of this Article for the text of the proposed Mental Health Court
Diversion Bill.
205. See generally POLICE EXECUTIVE RESEARCH FORUM, THE POLICE RESPONSE TO
PEOPLE WITH MENTAL ILLNESSES-INCLUDING INFORMATION ON THE AMERICAN DISABILITIES ACT REQUIREMENTS AND COMMUNITY POLICING APPROACHES-TRAINERS
GUIDE AND MODEL POLICY 15- 16 (1997). This comprehensive training guide was compiled to
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criteria for the release of offenders from institutional commitment; and
(4) implement an organized system for follow-up to ensure that mentally ill offenders are regularly reassessed and monitored.0 6
The Mental Health Department of Los Angeles Superior Court
is divided into Departments 95, 95A, 95B, the Office of the Counselor
in Mental Health, and the Clerk's Office. All courts operate on a
daily basis. Supervising Judge Shabo presides over Department 95,
and two bench officers preside over Departments 95A and 95B. Judge
Shabo hears a wide range of misdemeanor and felony cases involving
such issues as a mentally disordered client's confinement in mental
hospitals; a client's capacity to refuse treatment (e.g, medication and
ECT) 217 ; the extension of commitment for the dangerously insane
upon a prior finding of not guilty by reason of insanity (NGI); the
commitment of sexually violent predators (SVPs); commitments for
incompetency; commitments for narcotics addiction; and commitments for vagrancy or disturbing the peace.2" 8 In addition, the court's
caseload also includes proceedings for commitment of persons who are
mentally retarded.
provide law enforcement officials with a training curriculum designed to improve their responses
to citizens with mental disabilities under Title II of the Americans with Disabilities Act. Under
this approach, a person who is deemed a significant danger to himself or others and is taken into
custody by police for the purpose of an involuntary emergency mental health evaluation or
placement in a mental health facility is not arrested unless criminally charged. Id.
206. See Specialized Courtfor Mentally Ill, supra note 200, at 2.
207. Joanna Moncrieff, Psychiatric Imperialism: The Medicalisationof Modern Living (visited on Oct. 15, 2000) <http://www.critpsynet.freeuk.com/sound.htm>. Moncrieff notes that
"A consequence of the move toward community care is that public and political anxiety has
replaced the concern for patient rights with concern for protection of the community[,] and psychiatric treatment has become the panacea for this complex social problem." Id. She philosophically espouses rejection of societal paternalism, giving mentally disordered offenders "genuine
choices" to take or not to take their medications. Id.
208. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000). See also
Shabo Staff Interview, (July 6, 2000) (providing information regarding the operations of the Los
Angeles MHCT and current caseloads). From January through May 2000, the Los Angeles
MHCT reported a current inventory of approximately 7900 cases involving mentally disordered
defendants, about 2900 new filings, 4200 hearings or actions, and 2800 transfers or closed cases.
Id. Judge Shabo hears cases involving the following issues: mental competency under PC 1368,
1370.1 and 1372; mental retardation under WIC 6500; defendants not guilty by reason of
insanity [hereinafter NGI]; developmental disability; 180 day post-certification under WIC
5300; mentally disordered sexual offenders [hereinafter MSDO]; MSDO extension, monitoring,
or revocation under WIC 6316 or 6316.2; NGI extension, monitoring, or revocation under PC
1026, 1026.2 or 1026.5(b); sexually violent predators under WIC 6250; youth authority extensions under WIC 1800; electroconvulsive treatment under WIC 5327.7; weapons confiscation,
return, or restriction lifted under WIC 8102 or 8103; commitment to a mental hospital as a
condition of parole under PC 2970; medication capacity appeal under WIC 5334; commitment
for narcotics addiction under WIC 3050 or 3051; writs of habeas corpus under WIC 5275; initial
conservatorships under WIC 5350; conservatorship reappointments under WIC 5361; certification hearings for 14 and 30 day holds under WIC 5256.1; and facility based medication capacity
hearings under WIC 5332.
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The work of the court includes establishing and monitoring
patients on conditional release; committing persons with developmental disabilities to state hospitals; committing persons found
incompetent to stand trial in criminal proceedings; and dealing with
California Youth Authority wards who are "physically or mentally
defective or dangerous. ' '
The court also holds conservatorship
hearings to appoint a private party conservator or public guardian,
granting this individual decision-making responsibilities regarding the
treatment and residence of eligible clients.2 1 °
Department 95A hears mainly LPS conservatorship cases... and
temporary conservatorship hearings.212 It also hears cases regarding
the capacity of temporary conservatees who refuse psychiatric medications. Department 95B, founded in January, 1998, hears cases
concerning involuntary psychiatric hospitalization under the LPS law,
Riese appeal hearings for defendants potentially lacking capacity to
refuse medication, petitions by the District Attorney on 180 day
postcertification to hold patients posing a risk of danger to others, and
determination of whether confiscated weapons should be returned to
defendants committed under the LPS law. Department 95B is also
responsible for hearing all cases involving juveniles held involuntarily
in mental hospitals.
The Office of the Counselor in Mental Health assists the bench
officer in supporting courtroom operations. The Office performs this
209. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000) (noting
that some of the responsibilities of the MHCT are mandated by California statute and that two
bench officers share the work of the MHCT); see also Shabo Staff Interview, Los Angeles, Cal.
(July 6, 2000); Nicholas Regush, Problems with Forced Psychiatric Drug Treatment (visited on
Mar. 3, 2000 <http://abnews.go.com/sections/living/SecondOpinion/secondopinion-74.
html>. Nicholas Regush comments that many Californians oppose new legislation permitting
court-ordered psychiatric drug treatments. Id. While NAMI purportedly supports paternalistic,
imposed treatment of the mentally ill offenders, Regush notes that no scientific studies show that
such draconian measures significantly decrease violence and increase public safety. He states
that irrational public fear may be the driving force behind this proposed legislation. Id.
210. See generally WARREN, supra note 170, at 7-8.
211.
See generally STEPHEN H. BEHNKE ET AL., THE ESSENTIALS OF CALIFORNIA
MENTAL HEALTH LAW-A STRAIGHTFORWARD GUIDE FOR CLINICIANS OF ALL DIscIPLINES 73-80 (1998). Under the Lanterman-Petris-Short Act (LPS Act) in the California
Welfare and Institutions Code (beginning with section 5000), a court may order involuntary
hospitalization of a person with mental disorder for specified limited periods of time provided
that, as a result of that mental disorder, the person is a danger to himself, a danger to others, or is
gravely disabled. Id.
212. See id. at 82-83. In Riese hearings, the court determines whether the psychiatric
patient may choose to refuse psychiatric medications under the LPS Act. Id. The court's decision may depend upon whether there is an emergency situation or whether the patient is deemed
incompetent. Id. In either situation, involuntary treatment with medication may be administered in accordance with statute. Id. See also Riese v. St. Mary's Hospital, 271 Cal. Rptr. 199
(Cal. Ct. App. 1987).
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important court function by (1) supervising the Clerk's Office; (2)
scheduling hearings on the court's calendar; (3) managing case files
and updating the case management database; (4) coordinating sitebased probable cause hearings, medications, capacity hearings and
transmitting Writs of Habeas Corpus for patients held at Certification
Review hearings; (5) conducting precommitment hearings for cases in
which parents or legal guardians seek psychiatric treatment for minors;
(6) writing reports to the court for mentally disordered individuals
who are involuntarily held or in the age of minority and request release
from psychiatric inpatient detention; and (7) serving the community
by providing educational training, personal contact, and written information regarding existing mental health laws and resources, both legal
and medical.213 The Office also administers the filing of certifications
and petitions for medication capacity, yielding over 1500 Certification
Review and Medication Capacity hearings per month in over 55 psychiatric treatment sites throughout Los Angeles County.
Jury trials are generally held at different Los Angeles Superior
Court locations as well as in the Mental Health Department itself.
Offices of the Public Defender, District Attorney, County Counsel,
and Public Guardian are situated within the MHCT's facility. At
times, prosecutors from other County sites may appear before the
court. Ancillary MHCT personnel include a court manager, psychiatric expert witnesses, mental health counselors, social workers, court
clerks, bailiffs/sheriffs, court reporters, law externs, and administrative and secretarial staff.214
D. The Mental Health Court's Promotion of a Cooperative,
NonadversarialJustice System
In contrast to most generalist state trial courts, which rely upon
the time-honored adversarial system to ensure justice, the MHCT
judge facilitates largely nonadversarial court proceedings with an
approach whose objectives for the qualifying defendant include treatment, rehabilitation, and ultimate release. The judge elicits the
participation of the prosecution, defense, correctional facilities, law
enforcement, and treatment providers.21
213. Shabo Staff Interview in Los Angeles, Cal. (July 6, 2000).
214. See WARREN, supra note 170, at 8-9. See also Interview with Judge Harold E. Shabo
in Los Angeles, Cal. (Feb. 12, 2000) (noting that the organizational structure of the L.A. MHCT
has not changed significantly in the past two decades despite an increasing caseload reflected by
both the number and complexity of cases).
215. See generally JAMEY H. WEITZMAN, DRUG COURTS: A MANUAL FOR PLANNING
AND IMPLEMENTATION (Robin J. Kimbrough ed., 1995) (supporting a fair balance of treatment
and punishment in newly implemented drug courts). See also Interview with Judge Harold E.
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[Vol. 24:373
In Los Angeles County, Judge Shabo encourages a cooperative,
rather than adversarial, environment among various legal and medical
personnel, consistent with therapeutic jurisprudence and preventative
law principles. 216 For example, Judge Shabo may patiently encourage
withdrawn, medicated, or uncommunicative clients to speak of their
therapy needs or discomforting side effects. Judge Shabo regularly
mandates physician progress reports in order to ensure that patient
treatment is appropriate.
Surprisingly, clients who are unfamiliar with the cooperative
modus operandi of MHCTs and who have been "brainwashed" by the
court room antics of television or motion picture dramas (for example,
"The Practice" or "A Few Good Men") may be dissatisfied with what
they perceive as a "lackluster" court room performance by a lawyer.
While some private attorneys may "put on a dog-and-pony-show" for
the uninformed defendant who mistakenly equates a "Perry Masonstyle" adversarial approach with legal brilliance, an astute judge may
the judge finds
find ways to indicate to both client and counsel that
217
established cooperative approaches more productive.
E. Initial Court Hearings and Judicial Monitoringof Client
Rehabilitationfor Release Back to the Community
In a courthouse filled with sad stories, [those of the mentally ill]
are among the saddest of all. Some are so mentally disordered
Shabo in Los Angeles, Cal. (Feb. 12, 2000). But see Winick, supra note 44, at 41-43 (noting that
abuses of the nonadversarial system may result in abbreviated commitment hearings lasting only
four to nine minutes, rendering these hearings "perfunctory rituals" that compromise procedural
due process protections for clients). Winick comments that "judges appear to 'rubber stamp' the
recommendations of clinical expert witnesses," with a disturbing correlation frequently of over
ninety-five percent between expert witness conclusions and judicial decisions. Id.
216. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000). The
Author, serving as a law extern, observed court room procedures and interviewed district attorneys, defense attorneys and support staff.
217. In the Los Angeles MHCT, an occasional privately retained attorney may attempt to
justify his fee by using tactics designed more to impress the client than to obtain justice (for
example, an aggressive attack of medical expert testimony). Such theatrics are less likely to yield
satisfactory results than a logical legal argument supported by case law and statutory authority.
A judge may find means of communicating preferred modes of court procedure to defendants
and their lawyers. Mentally ill clients may express dissatisfaction with cooperative MHCT procedures, even if such procedures are beneficial to the client's treatment and preservation of legal
rights. The client's attorney and fellow patients may wish to educate defendants regarding
MHCT operations. See WARREN, supra note 170, at 10 (describing a private attorney who
made "a[n] [unnecessarily] lengthy, elaborate, and dramatic case for the release of a patient
which had been decided in advance by the judge, DA, and PD."). But see Interview with
Professor Jan Costello, Loyola Law School, in Los Angeles, Cal. (Mar. 23, 2000) (defendants are
ethically and constitutionally entitled to their "day in court" and to a dramatic defense presentation by their advocate if this is their preference).
2000]
Mental Health Courts
that they cannot even make it into the courthouse. Waiting on
benches outside [the] courtroom for their few minutes before the
judge are some others: a white-haired old woman with a vacant
stare living out her days in a nursing home, the angry man in the
polyester plaid sport coat gripped by paranoid delusions, or the
to live in a locked facility because he is
gifted artist forced
218
schizophrenic.
At a mentally ill defendant's initial competency hearing, the
judge must evaluate the defendant's mental state to determine whether
the defendant is competent and can understand the changes against
him or her.219 Some mentally ill defendants, such as the homeless and
poverty-stricken, may be "disenfranchised" from society, exhibiting
resistance to participation in the criminal justice and mental health
systems. 220 The client's defense attorney may be queried regarding the
defendant's competence to stand trial. 22' The judge then determines
whether the client should be provided psychiatric diagnosis, treatment, or other medically indicated services as an integral part of the
client's treatment plan. 2
218. Anne Krueger, Troubled Streets; For Mental Health Judge, Sad Stories, SAN DIEGO
UNION-TRIBUNE, Feb. 23, 1992, at B1. See also Interview with Judge Harold E. Shabo in Los
Angeles, Cal. (Feb. 12, 2000) (commenting that in Los Angeles County, the "doubt" is determined in the referring court, while diagnosis and evaluation are performed in the MHCT).
219. See Baker, supra note 170, at 3; Interview with Judge Harold E. Shabo in Los Angeles,
Cal. (Feb. 12, 2000). In Los Angeles, the generalist trial judge often determines competency. Id.
However, Judge Shabo recommends assigning this responsibility to the MHCT judge, who may
be more experienced in assessing competency. Id. If the client is deemed incompetent, the
MHCT may monitor this patient further. Id.
220. Joel A. Dvorskin & Henry J. Steadman, Using Intensive Case Management to Reduce
Violence by Mentally Ill Persons in the Community, 45 HoSp. & COMMUNITY PSYCHIATRY 679,
679 (1994) (commenting that many alienated mentally ill defendants come from lower socioeconomic classes and sometimes view "the mental health system and social service systems as
their enemy.").
221. See generally Jan C. Costello, Why Would I Need a Lawyer?" Legal Counsel and Advocacy for People with Mental Disabilities, in LAW, MENTAL HEALTH, AND MENTAL DISORDER
15-39 (Bruce D. Sales & Daniel W. Shuman eds., 1996) (noting that every state provides
defendants charged with involuntary civil commitment a right to counsel). See also BARBARA A.
WEINER & ROBERT M. WETTSTEIN, LEGAL ISSUES IN MENTAL HEALTH CARE 26 (1993)
(noting that in less populated areas the court may appoint a private attorney for a mentally ill
defendant).
222. CAL. PENAL CODE § 1001.20-35 (1999). Although § 1001.20-35 address a court's
diversion of mentally retarded individuals into treatment provided by regional centers, the procedure described is analogous to the proposed diversion of mentally disordered offenders into
treatment. If the defendant consents to the diversion process, he waives the right to a speedy
trial and the prosecutor, probation department, and regional center are ordered to prepare reports
regarding the defendant's case. Id. A qualified defendant meeting diversion criteria is then
eligible for enrollment in a proposed diversion treatment plan, and the court may order this
individual into the program. Id. Satisfactory completion of this program may lead to a dismissal
of criminal charges. Id. In Los Angeles County, a nonstatutory diversion program for mentally
ill defendants operates in some courts.
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[Vol. 24:373
The judge hears expert testimony by psychiatrists and psychologists to diagnose the defendant's mental condition and status (e.g.,
gravely disabled or dangerous). In cases of grave disability, the judge
determines whether the defendant is capable of obtaining basic
necessities (e.g., food, clothing, shelter) or utilizing them if provided
by others.223 In cases of dangerousness, the court assesses the degree
to which the defendant is likely to be violent toward himself or
others.224 The judge also monitors the conditions of the defendant's
confinement and the degree to which the treating facility respects the
defendant's rights.22 Furthermore, the court is responsible for conducting legally required, site-based administrative hearings to determine the reasons for involuntary confinement and the capacity of the
client to refuse treatment.226
In protecting a client's constitutional rights, all of the court's
site-based determinations are subject to judicial review. Mental health
counselors employed by the Los Angeles County MHCT contact clients, informing them of their constitutional rights (for example, to a
habeas corpus hearing).22 7 Mental health counselors also safeguard
patients' rights within the hospitals.
Caseworkers assigned to Florida's Broward County sheriffs
office screen mentally ill offenders in jails to determine if they are
potential MHCT candidates, monitoring their diagnosis and treatment once defendants have had their day in court.228 Caseworkers in
Los Angeles County screen nonviolent alleged misdemeanants and
felons to determine whether they are mentally ill and willing to accept
treatment, with deferral of trial.229 In addition, mental health person223. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000).
224. Id. See also WARREN, supra note 170, at 11-12.
225. The Los Angeles County MHCT judge monitors the way correctional facilities and
law enforcement officers treat mentally ill offenders to ensure that offenders are treated
humanely and are given such basic necessities as adequate food and access to telephones, medical
assistance, or relief from unnecessary restraint. In one instance, jail authorities were ordered to
provide a copy of the DSM-IV manual to an inmate to allow him to prepare for court proceedings. In another case, photocopy privileges were ordered to permit an incarcerated man to
prepare his defense. In a third situation, jail officials were ordered to give inmates larger numbers of copies of La Opinion, a local Spanish newspaper, to permit wider distribution of news.
See CAL. WELF. & INST. CODE § 5225.
226. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000).
227. WARREN, supra note 170, at 12.
228. Specialized Courtfor Mentally Ill, supra note 200, at 2.
229. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000); see also
Steadman, supra note 3, at 1630 (noting that mentally ill offenders arrested "for nonviolent
crimes may be diverted from jail to community-based mental health programs"). The National
Coalition for the Mentally Ill in the Criminal Justice System also supports diversion of "mentally
ill misdemeanants ...into appropriate mental health treatment services." Id. But see Winick,
supra note 45, at 99. The right to refuse medications provides a mentally disordered defendant
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nel staff the county jail to screen new inmates and provide treatment
for those identified as mentally ill.
Soon after arrest, a MHCT may participate in screening clients
who meet the acceptance criteria for nonviolent (or misdemeanant)
offenders, or, alternatively, who are deemed dangerous to themselves
or others. 23 ° Because of the MHCT judge's experience in monitoring
such mentally ill clients and the uniquely cooperative communication
between treatment and court entities, clients may find they cannot
readily manipulate the MHCT system by using deceptive strategies
that may otherwise work in traditional trial court settings.23'
At an initial hearing, the MHCT judge explains the defendant's
rights regarding treatment programs. 232 judges may elect to release
the mentally ill defendant on the condition that the defendant enrolls
in a mental health program or complies with probationary requirements.233 Judges may condition a client's acceptance of the treatment
option upon his or her waiver of the right to a speedy trial. 3
On a typical day at the L.A. MHCT, Judge Shabo may hear
forty or more cases, with perhaps four to five defense attorneys repreconstitutional due process rights because it provides for a hearing, either judicial or
administrative, to determine the defendant's capacity to refuse treatment. Id. See also
Washington v. Harper, 494 U.S. 210, 245-46 (1990) (Stevens, J., dissenting) (noting that
medication may be improperly used for control purposes rather than for treatment); Rennie v.
Klein, 476 F. Supp. 1294, 1299 (D.N.J. 1979) (noting evidence at trial revealed that psychiatric
medications were routinely prescribed to control patients rather than to treat them).
230. See generally JOHN M. MONAHAN, THE CLINICAL PREDICTION OF VIOLENT
BEHAVIOR 41-50 (1981); VERNON L. QUINSEY ET AL., AMERICAN PSYCH. ASS'N, VIOLENT
OFFENDERS: APPRAISING AND MANAGING RISK 20 (1998). But see CURT R. BARTOL,
CRIMINAL BEHAVIOR, A PSYCHOSOCIAL APPROACH 165 (1995) ("[T]he psychological
research has demonstrated 'clear and convincing evidence of the inability of psychiatrists or
anyone else to predict dangerousness accurately."'); Steadman, supra note 3, at 1634 (noting that
programs designed exclusively to "keep[] mentally disordered persons out of jail to prevent jail
overcrowding and disruption" fall short of therapeutic objectives when the programs fail to track
follow-up services received by released clients).
231.
SEE PETER FINN& ANDREA K. NEWLYN, U.S. DEP'T OF JUSTICE, DADE COUNTY
DIVERTS DRUG DEFENDANTS TO COURT RUN REHABILITATION PROGRAM 4 (1993) (noting
that clients in drug courts find it difficult to manipulate judges or the court system because of the
specialized nature of the court and enhanced communication). In the Los Angeles MHCT,
clients are seen consistently by the same judge, who coordinates treatment with clinical staff,
hospitals, attorneys, and penal institutions; such coordination minimizes the potential for a client
to manipulate the justice system and tends to make the mental health system's components
accountable to the court. Id.
232. See Drug Court Implementation Initiative 23 (May 23, 1995) (application for federal
assistance, filed to support financing of the Boston Drug Diversion Court).
233. Dvorskin & Steadman, supra note 220, at 682. Judges have indicated their frustration
with conditional release mechanisms because, in many jurisdictions, "there is no one to accept
responsibility for organizing such [mental health treatment] programming." Id.
234. See COOPER & TROTTER, supra note 152, at 24 (1994) (noting drug offenders' waiver
of right to speedy trial and election of treatment is similar to waiver available to mentally ill
offenders).
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[Vol. 24:373
senting clients and two to three district attorneys prosecuting cases on
behalf of the People.235 Most mentally ill offenders in the L.A.
MHCT are transported under sheriff supervision into temporary
holding cells on site prior to their courtroom appearance. 23 6 Each day,
a panel of psychiatrists is available at the facility to evaluate persons in
and out of custody and to report their findings back to the court.
In representing mentally ill clients, defense attorneys may
encounter special problems associated with their ethical obligations.237
Professor Jan Costello states,
Lawyers are likely to share the general public's unease with
mental disabilities. A client who cannot readily perform the
analytical and decision-making functions that are presumed to
be part of the lawyer-client relationship can frustrate the
lawyer.238
Mentally ill clients appearing before a Los Angeles MHCT
judge are often, but not always, lower class individuals who may be
poor, indigent, unemployed, and deficient in supportive family relationships. 239 At times, these clients may appear either uncooperative,
failing to recognize the need for legal representation, or disoriented
and incapable of communicating rationally with their lawyer.24 °
Nevertheless, public defenders assigned to such clients must ensure
that the client's needs are met while guarding against overly paternalistic tendencies to "care" for the client.2 4' Professor Costello cautions
235. See WARREN, supra note 170, at 10.
236. Occasionally, L.A. MHCT prisoners "act out" in their court holding cells. One
inmate flooded the toilets, causing temporary disruption and chaos. Another prisoner spat at
guards and resisted them, requiring Judge Shabo to conduct necessary proceedings at the cell
site.
237. See generally WEINER & WETTSTEIN, supra note 221, at 30-31.
238. Costello, supra note 221, at 30-31. "Clients with mental disabilities can be unpredictable in court; their testimony on the stand or behavior at a hearing can be completely unrelated to
what they said or did in an interview with the lawyer earlier the same day. All this may be
especially unsettling to a lawyer, since one of the attractions of the legal profession is its aura of
rationality and control." Id.
239. WARREN, supra note 170, at 12-13. (speculating that mentally ill individuals who are
middle class or upper class have more financial resources to rescue themselves from state hospital
systems). Warren further observes that poverty may enhance the probability of mental illness.
Id.
240. WEINER & WETTSTEIN, supra note 221, at 30. See also Jan C. Costello, Representing
Children in Mental Disability Proceedings, I J. CENTER FOR CHILDREN & THE CTS. 101, 107
1999 ("A client's mental disabilities may be confusing and even frightening to a lawyer/
advocate.... A client who has a hard time concentrating on the lawyer's questions because she
is hearing voices or is deeply depressed may be frightening.").
241. See Costello, supra note 240, at 109 ("A client with a mental disability may still possess the ability to understand, deliberate upon, and reach conclusions about matters affecting the
client's own well-being.... What the lawyer really needs to know is how to understand and
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that "the lawyer who simply takes on the role of guardian without
being appointed by a court violates the client's legal right to make
decisions unless and until he or she is declared incompetent by an
'
appropriate authority."242
Thus, she encourages defense attorneys to
avoid the "dangers of paternalism" and to give their clients the benefit
of complete representation, consistent with counsel's ethical obligations.243
When clients periodically express dissatisfaction with their
defense attorney's representation, the judge may find it advisable to
inform the client that the client has delegated decision-making responsibility over many procedural matters to the attorney. However, if
dissatisfied, the client may seek to obtain another defense attorney, if
available, or to opt for representation in pro per.244 When frustrated
clients elect to represent themselves, they may discover court proceedings to be too complex to be comprehensible, inadvertently making
detrimental decisions. Thus, the MHCT judge should provide the
defendant with information regarding the potential risks of selfrepresentation, preserving the client's future option to obtain assistance of counsel.245
communicate as effectively as possible with the client given the client's disability."); Steven J.
Schwartz et al., Protectingthe Rights and Enhancing the Dignity of People with Mental Disabilities:
Standardsfor Effective Legal Advocacy, 14 RUTGERs L. REV. 541, 570-71 (1983) ("Consideration for the clients mitigates in favor of representing their subjective wishes.... If advocates do
not listen to their clients, respect their views, and assist them to achieve some measure of selfdetermination, it is not clear who will."); Winick, supra note 44, at 42 ("Lawyers in commitment
hearings who take the paternalistic or best interests approach serve their clients inadequately"
because they may "play largely a clerical role, treating their function as just being 'to look
through the paperwork to make sure it is in order,' and thus give the false impression that the
client has had the benefit of legal representation. These lawyers 'roll over' in the hearing, deferring to the expert and even stipulating to the hospital's allegations and waiving the client's right
to testify."). Defendants at the Los Angeles MHCT are provided phone access to their public
defenders, although the defenders' heavy caseloads prohibit the monopolization of their limited
time. See Roberts et al., supra note 130, at II. Defense attorneys must balance their clients'
need for intensive treatment against the potentially adverse consequences of a waiver of trial or
the possibility of court-mandated treatment of an indefinite duration. Id. In contrast to a drug
addict's situation, for mentally ill offenders, civil commitment for an indefinite duration poses
the special danger of a potentially long-term commitment, perhaps without constitutional safeguards. Id. The judge safeguards this process by requiring periodic progress reports that review
the status of a client's treatment, mindful of the possibility that medically unnecessary medication may also impair the client's cognitive capacities. Id.
242. Costello, supra note 197, at 110.
243. Costello, supra note 240, at 22-25, 30-31.
244. Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000). Defense
attorneys may be either court-appointed or retained by clients. Options for defendants may
differ depending on the nature of the counsel provided.
245. In one L.A. MHCT hearing, Judge Shabo encountered an African-American defendant who claimed that a young defense attorney was discriminatory against blacks. Id. This client
wanted to represent himself or have another defense attorney assigned. Id. Judge Shabo sug-
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MHCT prosecutors seeking to protect public safety must determine, upon initial psychiatric evaluation, whether a particular client
warrants treatment or punishment for criminal offenses.246 In select
cases, prosecutors may argue that mentally ill offenders could attempt
to escape imprisonment if inappropriately assigned to treatment programs. 247 Professor Perlin notes a commonly perpetuated public
misconception is "that insanity [is] too easily feigned, that psychiatrists [are] easily deceived by such simulation, and that the use of the
defense has thus been 'an easy way to escape punishment.""'2 4 However, this public misconception is not supported by reported scientific
studies, and undetected malingering is an infrequent occurrence.249
However, prosecutors may inform the court that they retain the
of alleged offenders if the offenders
discretion to resume prosecution
250
programs.
treatment
their
fail
Psychiatric experts are routinely utilized by both defense and
prosecution attorneys to determine the clinical diagnostic and prognostic profiles of incarcerated defendants. In the L.A. MHCT, psychiatric experts may be permanently assigned to large state hospitals
and regularly testify in court.2"' Additionally, private psychiatrists
also have been appointed by the MHCT judge and reimbursed
through court funding.252
Although MHCT judges may order diagnosed mentally ill
clients into necessary treatment, state hospitals or other treatment
gested that before the client made a decision, he might benefit by discussing the lawyer's qualifications and favorable outcomes with fellow inmates. Id. The defendant postponed his decision
to dismiss counsel. Id. In another case, the defendant inadequately represented himself in pro
per, and Judge Shabo suggested that legal counsel might better aid the client in reaching his
objectives. Id.
246. See Roberts et al., supra note 130, at 16 (indicating some cases may warrant "full
prosecution and firm punishment").
247. See id. at 15-16 (noting that criminals may attempt to enter drug treatment to escape
their sentences and that sane offenders, likewise, may claim mental illness to avoid incarceration).
248. PERLIN, supra note 9, at 230-33. (noting that the public fear of feigned insanity is
generally unfounded, because "[t]here is virtually no evidence that feigned insanity has ever been
a remotely significant problem of criminal procedure .. " and that prolonged feigning of
mental illness requires "a continuity of exertion beyond the power of the sane person.").
249. See David Schretlen & Hal Arkowitz, A Psychological Test Battery to Detect Prison
Inmates Who Fake Insanity or Mental Retardation, 8 BEHAV.SCI. & L. 75 (1990) (citing studies
revealing that medical experts correctly classify 92-95% of all persons as either faking or not
faking.). See also Dewey Cornell & Gary Hawk, Clinical Presentationof Malingerers Diagnosed by
Experienced ForensicPsychologists, 13 LAW & HUM. BEHAV. 375, 381-83 (1989).
250. But see Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000).
(noting if clients are incompetent to stand trial, this prosecution option may not apply).
251. WARREN, supra note 170, at 11.
252. Id. See also Interview with Judge Harold E. Shabo in Los Angeles, Cal. (Feb. 12,
2000). In 1984, the psychiatric fee was $150 per half day, but this amount has increased with
inflation to $250-500 plus allocated travel expenses in the year 2000. Id.
2000]
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facilities could conceivably refuse admission because of overcrowding
or the defendant's inability to pay for services rendered. 253 Dr. E.
Fuller Torrey comments, "[t]he most sobering side of jail diversion ... is the [often incorrect] assumption that there are public
psychiatric services to which the mentally ill individuals can be
diverted." 254 Yet, Ed Cooper, President of Novastar Opportunities for
the Mentally Ill, observes that the court possesses legal authority to
"allow[] you to force [provision of] community treatment in a state
where there is no community treatment law. '215 Judges in states
where the community lacks resources may utilize equitable principles
to justify interim treatment until adequate legislative or local action is
implemented to provide necessary community treatment facilities.
Michael Elwell, mental health services coordinator for the Broward
County jail, supports expanding existing treatment facilities to accommodate the needs of the mentally ill, commenting, "If you dedicate
resources to individuals, somewhere down the line your costs decrease
'
tremendously. Besides, it's the right thing to do."256
Dr. Henry Steadman's comprehensive study found six factors
were regularly associated with successful jail diversion programs: "(1)
integrated services, (2) regular meetings of key agency representatives,
(3) boundary spanners, (4) strong leadership, (5) early identification,
and (6) distinctive case management services. "257 To meet an anticipated increased medical need for psychiatric care due to MHCT intervention, Broward County recently proposed construction of a $3
million forensic mental health treatment center, providing beds for
253. Baker, supra note 170, at 4.
254. Torrey, supra note 9, at 12 (noting that a mentally ill person must be given medications and aftercare to ensure that he can successfully transition back into the community). See
also Steadman, Diversion of Mentally Ill Persons supra note 3, at 1630-31 (defining "diversion" as
"specific programs that screen defined groups of detainees for the presence of mental disorder;
use mental health professionals to evaluate those detainees identified in screening; negotiate with
prosecutors, defense attorneys, community-based mental health providers, and the courts to produce a mental health disposition as a condition of bond, in lieu of prosecution, or as a condition
of a reduction of charges (whether or not a formal conviction occurs); and link the detainee
directly to community-based services."). Dr. Steadman further observes that "very few of the
programs... visited had specific follow-up procedures for diverted detainees. Id. Even in
instances in which careful attention was placed on linkage to community-based services, few
programs had any mechanism to ensure that the initial linkage was maintained." Id.
255. Torrey, supra note 9, at 5. Cf. Steadman, supra note 3, at 1634 (observing that some
simplistic jail diversion programs may have a primary goal of "keeping mentally disordered
persons out of jail to prevent jail overcrowding and disruption"). More sophisticated diversion
programs aim toward "an intensive level of mental health treatment and supervision directed
toward the prevention of reoffense." Id.
256. Torrey, supra note 9, at 5. (commenting that incarceration is more costly than treatment over the long term, since mentally ill individuals lacking treatment may be caught in the
jail system's "revolving door" and may be imprisoned several times a year).
257. Steadman, supra note 3 at 1631.
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treatment lasting up to four months in duration.258 Concerned communities may follow Broward County's lead with similar budgetary
commitments to provide increased levels of care for these clients.
Pending results of their treatment, some jurisdictions may elect
to defer prosecution of mentally ill clients, while other jurisdictions
may wish to find defendants guilty of crimes but also mentally disordered, placing those defendants on probation.5 9 Clients are motivated
to cooperate in treatment, since under either court option, clients who
are treatment compliant will not be incarcerated. Those who are not
compliant face resumption of criminal proceedings or the completion
of their sentences.260
Over the two year period since its creation, judges in Broward
County's MHCT ordered 24% of clients into community programs,
provided psychiatric evaluations for 17%, hospitalized 15%, and provided treatment by private psychiatrists for another 7%.261 In addition, the Broward County Mental Health Task Force successfully
obtained $145,000 to fund a 25 bed hospital center designed to treat
and house mentally ill misdemeanant offenders.262
F. Creationof Functional ConditionalRelease Plans to Prevent
PotentialRelapses or Recidivism
After the MHCT has accepted a mentally ill defendant into its
diversionary program and that client has successfully completed the
treatment program, the defendant should be considered potentially
eligible for a conditional release or a probationary program. Judges in
newly established MHCTs may consider the approaches of Judge
Shabo and Judge Lerner-Wren, creating a workable condition-ofrelease plan in their own jurisdictions to define the circumstances
2 63
required for the release of a mentally ill offender back to society.
For example, in Judge Shabo's L.A. MHCT, a 65-year-old
former child molester was imprisoned for most of his lifetime; his first
offense occurred at age 17. Later in life, he suffered from such severe
dementia that he became disoriented, lost, and could not find his cell
after visiting the latrine. While one psychiatric expert testified the
defendant might still experience unnatural lusts for children consistent
with his past crimes, another medical expert stated that the demented
defendant was incapable of executing an organized plan to molest a
258.
259.
260.
261.
262.
263.
Torrey, supra note 9, at 6.
See COOPER & TROTTER, supra note 152, 22-23.
See FINN & NEWLYN, supra note 231, at 10.
Therapy Instead of Jail, supra note 20, at 18A.
Keep Better Track of Funding,SUN-SENTINEL (Ft. Lauderdale), July 7, 1999, at 22A.
Specialized Courtfor Mentally Ill, supranote 200, at 2.
2000]
Mental Health Courts
child. Judge Shabo released the defendant to a family member who
was made a conservator and charged with the responsibility of
ensuring that the client was not alone with children, thus minimizing
risk of reoffense.
State courts are generally empowered to monitor the use of
conditional release and community outpatient treatment programs for
mentally ill offenders.264 Professor John Monahan notes that although
"individuals with severe mental illnesses are responsible for no more
than 5 percent of violent episodes.., each year," it is "especially
unnerving" when such incidents occur.265 Judges necessarily balance
the ability of the mentally ill patient to be treated in the community,
the least restrictive setting, 266
against any potential danger such treatBefore granting an offender a condiment poses to public safety.
tional release, the judge may hear detailed expert medical testimony
regarding predictors of future dangerousness and evidence regarding
both the offender's mental illness and the absence of his or her potential for violence. 267 Even if the judge allows such a release, an
offender's violation of conditions in the court's treatment plan will
result in discontinuance of treatment and reincarceration6
Courts may assign responsibility for a mentally ill offender's
monitoring and transition back to society to community treatment
centers or other mental health professionals. 269 For example, following
a court order for treatment, Broward County assigns mental health
coordinators who ensure that released defendants are safely relocated
back into the community.27 ° In this endeavor, Dr. Steadman recommends deployment of case managers to assist defendants in obtaining
such basic benefits as Social Security Disability Insurance (SSDI),
Supplemental Security Income (SSI), Medicare, Medicaid, General
Relief, or food stamps. 271' Effective diversion programs also include
264. See, e.g., Brown v. United States, 682 A.2d 1131 (D.C. Ct. App. 1996); Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992); State v. Eaton, 919 P.2d 116 (Wash. Ct. App. 1996). See also
CAL. PENAL CODE § 1600 et seq. (1998).
265. Elaine Jarvik, Touchy Topic: Mental Health Violence, THE DESERT NEWS (Salt Lake
City), Jan. 16, 2000, at A01.
266. See, e.g., People v. Sword, 34 Cal. Rptr. 2d 810 (Cal. Ct. App. 1994); United States v.
Ecker, 543 F.2d 178 (D.C. Cir. 1976); Marsh v. State, 942 S.W.2d 385 (Mo. Ct. App. 1997).
267. See, e.g., People v. Sword, 34 Cal. Rptr. 2d 810 (Cal. Ct. App. 1994); McKee v. State,
923 S.W.2d 525 (Mo. Ct. App. 1996); Grass, 925 S.W.2d at 71.
268. See, e.g., Levine v. Torvik, 986 F.2d 1506 (6th Cir. 1993); Unites States v. Woods
944 F. Supp. 778 (D. Minn. 1996).
269. See, e.g., People v. White, 518 N.E.2d 1262 (I11.Ct. App. 1988).
270. Specialized Court for Mentally Ill, supra note 200, at 2.
271. Dvoskin & Steadman, supra note 220, at 681 (noting that case managers may help
clients obtain vocational training and Medicaid to "gain access to a physician or other health care
professional").
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community-based mental health, substance abuse, and housing services."272 In addition, as with drug courts, MHCTs may elect to use
the guidance
of an employment counselor to facilitate rehabilitative
transition. 273 To prevent relapse, judges should maintain close supervision over the conditional release treatment process. Some courts
require at least initial periodic court appearances (e.g., biweekly) by
clients, attorneys, and treatment personnel or probation officers.274
After successful completion of the conditional release program,
courts maintain wide discretion in decisions regarding final release or
discharge of the offender from treatment and custody.275
VI. PRESCRIPTION FOR JUDICIAL REFORM: ACTION PLAN FOR
THE ESTABLISHMENT OF STATE MENTAL HEALTH COURTS
When creating an action plan for establishing MHCTs, the
following factors should be considered: (1) obtaining state and local
financial and political support for the creation of MHCTs; (2) federal
grant availability under America's Law Enforcement and Mental
Health Project (ALEMH Project), recently enacted by Congress to
support the establishment of up to 100 pilot MHCT programs; (3)
anticipated economic savings obtained in establishing MHCTs; (4)
the potential role of MHCTs in reducing criminal recidivism rates; (5)
the role of MHCT judges in the news media as advocates of therapeutic jurisprudence; and (6) current progress reported and successes
achieved in creating effective state MHCTs. Appendix A of this
Article provides proposed legislation, entitled "Mental Health Court
Diversion Bill," for consideration by state legislators, courts, mental
health departments, academicians, and other concerned individuals or
governmental entities who support the creation of state mental health
specialty courts in their respective jurisdictions.
272. Steadman, supra note 3, at 1634.
273. See FINN & NEWLYN, supra note 231, at 5.
274. See Roberts et al., supra note 130, at 6. See also Drug Court Implementation Initiative,
supra note 232, at 14. Drug courts, like MHCTs, may recommend regular and frequent (e.g.,
weekly, monthly) court appearances to prevent relapses and reoffenses. Id. Such court monitoring may be viewed as a short term financial investment, which may be cost effective in the long
term. Id.
275. See, e.g., State v. Perez, 648 So. 2d 1319 (La. 1995); People v. Bolden, 266 Cal. Rptr.
724 (Ct. App. 1990); Canidate v. Stricklin, 568 So. 2d 1234 (Ala. Civ. App. 1990); In re Francis
S.,
618 N.Y.S.2d 660 (A.D. 1994) (noting a broad spectrum of past and present behavior may be
considered in assessing an offender's future probability of recidivism); In re Watt, 525 A.2d 421
(Pa. Super. Ct. 1987); Carlisle v. State, 512 So. 2d 150 (Ala. Ct. App. 1987) (evaluating whether
the offender's mental illness is in remission or controlled by medication, and whether there is a
likelihood that the offender will maintain good behavior upon release).
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Mental Health Courts
A. ObtainingFinancialand Political Supportfor Creation of
State Mental Health Courts
Predictably, the greatest barrier to the establishment of state
MHCTs is obtaining adequate political and financial support for such
programs. Ultimately, state legislators, policy-makers, and citizens
hold the purse strings to authorize and permit creation of these
specialty courts. At times, a newsworthy criminal event triggers
immediate public awareness of the need for specialized courts." 6
Alternatively, visionary political leaders may pioneer experimentation
in the state judiciary based upon successes reported by specialty courts
in distant jurisdictions. MHCT proponents may be encouraged by
recently reported successes in the numerous drug specialty courts, now
exceeding 425 in number,277that have sprouted and substantially grown
from meager beginnings.
For example, Florida's Broward County MHCT was authorized
and established by Chief Judge Dale Ross in 199727" after two years of
intensive investigation by the district attorney's office, public defender's office, sheriffs department, and the Henderson Mental Health
Center.279 Susan McCampbell, Director of the Broward County
Department of Corrections and Rehabilitation, said that in 1994,
county officials recognized that cases involving mentally ill offenders
were causing backlogs in the civil courts and that jails and forensic
treatment centers were overcrowded.8 0
Henry Steadman, President of Policy Research Inc., noted that
while "a lawsuit or a court order" often compels governments to establish new judicial programs such as MHCTs, it is vastly preferable to
bring agencies together to discuss common objectives and needs. 28 '
Florida's Judge Mark Speiser created a task force of county officials
who met monthly to discuss the possibility of creating a state MHCT
276. Josh Meyer, Sheriffs Dept. to Take Over Court Patrols, L.A. TIMES, Sept. 6, 1995, at
Bi (1999) (noting that the L.A. County Board of Supervisors instituted increased security at
courthouses in response to a widely publicized shooting at a downtown courthouse).
277. Goldkamp, supra note 128, at 425. See also John S. Goldkamp, The Origin of the
Treatment Drug Court in Miami, in THE EARLY DRUG COURTS: CASE STUDIES IN JUDICIAL
INNOVATION 19, 22 (W. Clinton Terry, II. Ed., 1999) (discussing the creation of the first drug
courts and the advantages of such specialty courts over traditional generalist courts).
278. Therapy Instead of Jail, supra note 20, at 18A; Henry Fitzgerald, Jr., Year-Old Mental
Health Court Celebrates Its Success, SUN-SENTINEL (Ft. Lauderdale), July 1, 1998, at 3B.
279. See Rocio Diaz, Court for Mentally Ill in Session, LAS VEGAS REVIEW-JOURNAL,
Aug. 31, 1997, at 17A.
280. Specialized Courtfor Mentally Ill, supra note 200, at 2.
281. Seeid.at2.
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based on the successful drug specialty court experiences of other
states.2" 2
Under Florida's proposed task force plan, the MHCT judge
identifies nonviolent offenders as candidates for psychiatric evaluations, community mental health services, and possible commitment to
state mental health hospitals. Furthermore, the MHCT judge provides the continuity that generalist trial courts lack, ensuring that
mental health care providers respond quickly in providing adequate
treatment to mentally disordered defendants.2 83
In creating the now successful Broward County Florida MHCT,
Henry Steadman acknowledged that the most difficult hurdle to overcome was ensuring that sufficient mental health service resources were
available to accommodate the large influx of mental health clients
entering the court system."8 4 California observers add that such programs should be furnished with adequate facilities and should provide
financial incentives adequate to obtain highly qualified MHCT bench
officers, attorneys, and support staff.28 The National Resource Center on Homeless and Mental Illness recently published an excellent
resource pamphlet listing major national organizations involved in
supporting mental health and related programs.286
In Florida's MHCT, a task force recommended that its new
judge begin by hearing misdemeanor offense cases first, before transi-
282. Seeid. at 1.
283. See id. at 1-2.
284. See id. at 2.
285. Wrong Answer, supra note 7, at 6. See also Court Is in a Real Pickle, L.A. WEEKLY, at
12, Sept. 10, 1999. The Los Angeles MHCT-the oldest in the nation-was constructed in an
"aging, decrepit" former mustard-and-pickle factory known as "The Pickle Factory." Id. Judge
Shabo notes that "[air conditioning] has been a problem for the nine years I've been there....
This is all part of the county directing resources away from mental health." Id. Computers at
the MHCT are frequently immobilized by crashes that freeze productivity, and software is antiquated. Id. Yet, Supervisor Yaroslavsky announced that day that $450,000 in air conditioning
and lighting improvements were completed at the Beverly Hills Municipal Court site. Id. See
also Costello, supra note 221, at 36. Professor Costello notes that defense attorneys and nonlawyer advocates for mentally disordered defendants should be comprehensively trained in legal and
medical procedures. Id. New advocates require training in MHCT procedures and policies,
federal and state laws pertaining to the diversion and treatment of mentally disabled clients, techniques for facilitating mentally ill client interviews, correctional and hospital institutional procedures, ethical considerations in the assessment and implementation of client objectives in
representation, expert witness examination and cross-examination techniques, interpretation of
medical records, the DSM-IV categorization of psychiatric disorders, and frequently prescribed
psychiatric medications and their side effects. Id.
286. See generally NATIONAL RESOURCE CTR. ON HOMELESS AND MENTAL ILLNESS,
NATIONAL ORGANIZATIONS CONCERNED WITH MENTAL HEALTH, HOUSING, AND HOMELESSNESS (2000). To obtain this publication, contact the Center at (800) 444-7415 or at
[email protected].
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Mental Health Courts
tioning to more difficult felony cases. 287 Judge Lerner-Wren's
MHCT started slowly, with about a dozen cases per week. 288 This
figure has increased, and over 1200 cases have been heard since the
court's inception. 289 Broward County's MHCT obtained both a $1.5
million state grant and $250,000 locally for both the MHCT and the
Cottages in the Pines hospital site.29
Other states have followed the examples set by the Los Angeles
and Broward County MHCTs. Arkansas' Pulaski County CircuitChancery MHCT Judge Mary McGowan says that states such as
Arkansas "are really putting their money and resources where their
mouth is," as "a major commitment" to state mental health objectives.291 Florida's Palm Beach and Fort Pierce judges and mental
health workers also debate whether a MHCT should be provided for
mentally ill repeat misdemeanants.292
Circuit Judge Ronald Alvarez publicly comments, "It's hard for
me to envision that there is not public or private money for this. We
need to keep the mentally ill out of the revolving door of the criminal
' 293
Dr. Henry Steadman states, "the mentally disturbed jail
courts.
inmate must be viewed as a community issue." 294 Consistent with this
philosophy, Florida's Osceolo County has already taken the leap of
faith by beginning a new MHCT.295 Similarly, Chicago is contemplating a MHCT to "steer-or even mandate mentally ill detainees
into treatment. '296 Denver's legislative committee is also considering297a
MHCT to deal with mentally ill offenders guilty of minor offenses,
287. See Specialized Courtfor Mentally Ill, supra note 200, at 2. In contrast, Judge Shabo's
Los Angeles County MHCT routinely hears both felony and misdemeanor cases involving mentally disordered defendants.
288. Diaz, supra note 279, at 2.
289. Good MorningAmerica I, supra note 5.
290. Henry Fitzgerald, Jr., Court a Safety Net for Mentally Ill; Program Wins Award for
Providing Counseling Instead of Jail Terms, SUN-SENTINEL (Ft. Lauderdale), Dec. 28, 1998, at
3B.
291. Susan Roth, Expert Endorses State Plan to Track Mental Patients,ARKANSAS DEMOCRAT-GAZETTE, April 22, 1994, at IA (quoting Pulaski County Circuit-Chancery Judge Mary
McGowan as stating that states such as Arkansas "are really putting their money and resources
where their mouth is," with plans that are "not an end to [themselves].").
292. See Douthat, supra note 175, at 2B; see also Sarah Eisenhauer, Base Is Laid for Special
Court System to Serve Mentally Ill Clients, FORT PIERCE NEWS, May 14, 1999, at AS.
293. See Douthat, supra note 175, at 2B.
294. Steadman, supra note 3, at 1634 ("Diversion programs for detainees with mental illnesses will not work without coordination of appropriate services."). MHCTs may provide
efficient coordination of services within diversion programs. Id.
295. See Debbie Salamone Wickham, Firsta Whisper, Then the Storm; System Fails to Stop
Violence by Mentally Ill, ORLANDO SENTINEL, Nov. 1, 1999, at Al.
296. Jerry Dincin, Getting Medication to the Mentally Ill, CHICAGO TRIBUNE, June 21,
1999, at 10.
297. Real Help for Inmates, DENVER POST, Nov. 14, 1999, at G04.
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[Vol. 24:373
and Albuquerque hopes to obtain state funding for a pilot MHCT
program. 29 8 NAMI notes that a MHCT has just been created in
Austin, Texas, and another less publicized MHCT was recently built
in Arkansas.299 Ohio's Butler County was promised $370,000 in
operating funds for a MHCT, and additional financial support is anticipated."' Even the Canadians have joined the bandwagon and
acknowledged the utility of MHCTs; upon its inception in May 1998,
Toronto's MHCT was lauded in the news as a pioneer for social
change. °1
Among the newest state MHCTs is Washington's King County
MHCT, recently started at an initial cost of about $900,000 a year,30 2
under the supervision of Judge James Cayce.30 3 The stabbing death of
a retired Seattle firefighter by a misdemeanor offender who was a paranoid schizophrenic stimulated the creation of the task force that proposed the creation of a MHCT explicitly patterned after the Broward
County MHCT. Since more than 200,000 misdemeanor cases are
heard by 26 King County District Court judges annually, the new
MHCT, with its own judge, prosecutor, and public defender, is slated
to hear up to 50 new cases per month.0 4
For states on limited budgets that cannot immediately create a
fully operative MHCT, periodic rotation of mentally ill client cases
among traditional trial court judges may pose a more realistic option.
For example, in California's San Diego County court, "the job of
hearing the mental health cases is rotated yearly among the judges
because the caseload is so heavy, and so sad. '3 1 In San Diego, Superior Court Judge Laura Hammes hears cases involving mentally ill
298. Kate Nash, City Council Split Over Big-I Reconstruction Money, ALBUQUERQUE
TRIBUNE, Jan. 18, 2000, at A4.
299. Roth, supra note 291, at 2.
300. See Randy McNutt, Court for Mentally Ill Offenders Advocated; Judicial Officials at
Seminar Told Treatment is Lacking, CINCINNATI ENQUIRER, Nov. 10, 1999, at B2.
301. See Criminal System Begins to Recognize Health Issues: Focus on Treatment vs. Punishment, J. ADDICTION & MENTAL HEALTH, Feb. 1999, at 11.
302. See Barker, supra note 8, at B1.
303. Chief Justice Richard P. Guy, JusticeDenied in Washington's Clogged Courts: Supreme
Court Justice Sees Resources Lagging FarBehind, NEWS TRIBUNE, Jan. 23, 2000, at B8. See also
Telephone Interview with Judge James Cayce in Seattle, Wash. (Feb. 8, 2000). Judge Cayce
notes that the King County MHCT was created informally by the jurisdiction without legislation
or judicial order. Id.
304. Guy, supra note 303, at B8. See also Penny Stuart, Mental Health Courts Connect
People to Services: Treatment vs. Punishment, 2 J. ADDICTION & MENTAL HEALTH 13 (1999)
(noting 308 people have been assessed since the Toronto Court 102 MHCT was launched as a
pilot project in May 1998).
305. Krueger, supra note 218, at B-1.
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Mental Health Courts
clients on Tuesdays and Thursdays, noting, "We do have the law, we
just don't have the resources. "306
Limited funding negatively impacts the ability of courts to hear
and monitor mentally ill offenders' diagnosis and treatment. In one
unfortunate incident, Judge Hammes sharply criticized that funding
shortages were responsible for the unauthorized medical release of a
schizophrenic man she ordered to be temporarily held in the San
Diego County Psychiatric Hospital prior to his transfer to a California
mental institution.3" 7 Alaska, where about 30 percent of the 3,000
inmates suffer from mental illness, has created "a sort of makeshift
mental health court," where two District Court judges hear cases
involving mentally ill misdemeanor offenders as part of the new
Coordinated Resources Project.30 8
B. Recent Enactment of "America'sLaw Enforcement and Mental
Health Project" Based Upon Previously Proposed FederalLegislation and
Discussion of Proposed State Legislation
On November 13, 2000, "America's Law Enforcement and
Mental Health Project" (ALEMH Project) was enacted to provide
grants for establishment of mental health courts.30 9 This progressive
Congressional legislation was based upon companion bills, S. 1865
and H.R. 2594, written by Senator Mike DeWine, Senator Pete
Domenici, and House Representative Ted Strickland. As its predecessors (H.R. 2594 and S. 1865) proposed, the ALEMH Project
provides for $10 million annually to be granted to "states, state courts,
local courts, units of local government, and Indian tribal governments" for up to 100 diversionary programs.
Title I of the Omnibus Crime Control and Safe Streets Act of
1968 was amended to include "Part V-Mental Health Courts" after
part U of 42 U.S.C. 3796hh. Paragraph 19 of 42 U.S.C. 3793(a) was
amended to provide $10 million annually for each year from 2001
through 2004. The Attorney General, with assistance of the Secretary
of Health and Human Services, was given the authority to administer
306. Id.
307. See id.
308. See generally Lisa Demer, Mentally Ill Fill Cells; New Program Will Treat, Not Jail,
Minor Offenders, ANCHORAGE DAILY NEWS, July 5, 1998, at 1A. See also Elaine M. Andrews
& Stephanie Rhoades, Anchorage DistrictCourt Initiates Two New Programs: People with Disabilities Offered Alternatives in Judicial Proceedings, 23 ALASKA BAR RAG 1 (1999) (noting
Anchorage District Court's Coordinated Resources Project establishes a specialty court for mentally ill misdemeanor offenders).
309. See America's Law Enforcement and Mental Health Project, 106 P.L. 515; 114 Stat.
2399; 2000 Enacted S.1865; 106 Enacted S. 1865 (President Clinton signing S.1865 into law on
November 13, 2000).
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[Vol. 24:373
the ALEMH Project, including issuance of regulations and guidelines
for evaluation of state and local diversion programs. Since President
Clinton signed this new legislation while this Article was being
prepared for publication, the following discussion will provide background information regarding the development of this new law.
Federal legislators, and a few state representatives, have recently
promoted bills in support of the creation of mental health courts. In
Congress, House Democrat Ted Strickland recently sought passage of
federal legislation to provide $10 million over the next five years to
partially fund twenty-five pilot MHCTs throughout the United
States.31 In Representative Strickland's legislative proposal, America's Law Enforcement and Mental Health Project (H.R. 2594),311
each MHCT would be provided approximately $300,000 per year,
and the remaining estimated costs of about $75,000-$100,000 per year
would be paid by local communities. He cited a 1999 U.S. Department of Justice study revealing that over 250,000 jail and prison
inmates are mentally ill and potentially in need of state MHCTs that
would place them in community treatment programs.312
Congressman Strickland, a former psychologist and ordained
minister who previously worked in the Lucasville prison, commented
that many mentally ill jail inmates are incarcerated for relatively insignificant minor offenses (trespassing, for example), yet deteriorate in
jails, subsequently escalating to worse offenses because of a lack of
treatment for their mental disorders.3 13 Under many state statutes,
police, acting as "street corner psychiatrists," may arrest mentally ill
street people as substitute "intake procedures" because arrest is
deemed less burdensome than the procedures necessary for emergency
psychiatric intervention.314 Congressman Strickland notes "Jails are
becoming America's new mental asylums. Our court systems, prisons
and jails are being clogged with mentally ill individuals who should be
taking part in mental-health treatment."31 Moreover, Strickland says,
310. See House Republicans Angling to Fill Committee's Vacancy, COLUMBUS DISPATCH,
July 25, 1999, at 7A; Scott Montgomery, Rep Proposes Experimental 'Mental Health' Courts,
DAYTON DAILY NEWS, July 23, 1999, at lB.
311. See H.R. 2594, 106th Cong. § 1 (1999). See also More Humane: Mental Illness; Try
Treatment, Not Jail, CINCINNATI ENQUIRER, Jan. 19, 2000, at A13. [hereinafter More Humane
Treatment].
312. House Republicans Angling to Fill Committee's Vacancy, supra note 310, at 2.
313. Id. See also More Humane Treatment, supranote 311, at A13.
314.
MENTAL HEALTH AND LAW: RESEARCH, POLICY AND SERVICES 286, 288 (Bruce
D. Sales & Saleem A. Shah eds., 1996) (noting that arrest is an efficient way for police to "get[]
mentally ill persons off the streets"). See generally L.A. Teplin & N.S. Pruett, Police as
15 INT. J. LAW AND PSYCHIATRY 139
Streetcorner Psychiatrists: Managing the Mentally Ill,
(1995).
315. House RepublicansAngling to Fill Committee's Vacancy, supra note 310, at 2.
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Mental Health Courts
I have seen individuals who are living out the rest of their lives
behind bars because they committed crimes that probably would
not have been committed had they received mental health treatment. I have seen the effect of prison on the mentally ill and the
effect of the mentally ill on prison.316
He adds, "I am excited about the concept of having mentalhealth courts, where appropriately we can divert people into treatment
'
rather than incarceration." 317
Under Representative Strickland's Mental Health Project plan,
eligible offenders with mental illness, retardation, or coexisting mental
illness and substance abuse problems may be diverted into MHCT
proceedings if these clients are charged with non-violent misdemeanor
crimes.318 In addition, judicial and law enforcement personnel are
provided with training programs "to identify and address the unique
needs of a mentally ill or mentally retarded offender."3 9 Strickland's
H.R. 2594 first proposed that state government officials would request
federal funds to finance a MHCT by submitting an application to the
United States Attorney General. 2 °
Attorney General Janet Reno gave Representative Strickland
"positive feedback" regarding his bill, which President Clinton later
signed into law. 21 Like Strickland, California Assemblyman Bruce
Bronzan has estimated that it would cost approximately $2 billion
3 22
annually to hospitalize and treat the nation's homeless mentally ill.
He supports commitment of public funds for such programs.
Contemplating Representative Strickland's bill, Senator Mike
DeWine (R-OH), a former prosecutor, and Senator Pete Domenici
(R-NM) have introduced companion Congressional legislation (S.
1865) providing for "125 pilot mental health court programs during
the next five years. "323 This project "is designed to identify at an early
316. More Humane Treatment, supra note 311, at A13.
317. Jonathan Riskind, Clinton Urges Mental-Health Parity, COLUMBUS DISPATCH, June
8, 1999, at 1A.
318. See H.R. 2594, 106th Cong. § 1(1999).
319. Id. (matching contribution of 25% from the state; federal contributions may not exceed
75% of costs).
320. See House Republicans Angling to Fill Committee's Vacancy, supra note 304, at 2; H.R.
2594, 106th Cong. § 1 (1999) (noting that unless the Attorney General waives a matching contribution of 25% from the state, the federal contribution to the state MHCT may not exceed 75% of
costs.).
321. See House Republicans Angling to Fill Committee's Vacancy, supra note 310, at 2.
322. See Wrong Answer, supra note 7, at 2.
323. DeWine, supra note 12, at 1; see also More Humane Treatment, supra note 287, at AX;
America's Mental Health Companion Senate Bill, supra note 19, at 1; America's Law Enforcement and Mental Health Project, 106 P.L. 515, 114 Stat. 2399. The ALEMH Project provides
for "not more than 100 programs" for mental health courts over the period from 2001 through
Seattle University Law Review
[Vol. 24:373
stage those non-violent mentally ill offenders within our justice system, and to use the power of the court to assist them in obtaining
Senator DeWmie
appropriate treatment from trained experts. ' ' 12
states:
Each mental health court program would include: Specialized
training of law enforcement and mental health court judicial
personnel to address the special needs and challenges of nonviolent mentally ill offenders; Centralized case management of all
nonviolent cases involving qualified mentally ill or retarded
offenders; Voluntary assignment of qualified offenders to outpatient or inpatient mental health treatments; Life skills training,
job placement, and education for mentally ill participants; and
Continuing judicial monitoring of offenders participating in a
treatment plan.325
Under this MHCT project, "[e]ach court would have its own
judge, prosecutor, defender, social worker and probation officer working with local mental health specialists on treatment plans, including
'
Senator Demedication, counseling, housing, even job training."326
Wine states that "Mental health courts offer an alternative. These
courts are a very good and viable means of addressing this problem,
the mentally ill with the proper treatment and help they
providing
3 27
need."
Recently, Senators Domenici, Kennedy, and Wellstone presented the Mental Health Early Intervention, Treatment, and Prevention Act of 2000 (S.2639), which would amend the Public Health
Service Act to provide treatment programs for the mentally ill. 3 28 This
bill provides for up to 125 Mental Health Court grant programs to
provide full evaluation of potentially mentally disordered defendants
by qualified mental health professionals, specialized training of court
personnel and law enforcement to address needs of mentally disordered defendants, judicial supervision of the delivery of mental health
treatment, and centralized case management. The Bazelon Center for
Mental Health Law notes that the Dominici bill limits the length of
2004. In addition, the Attorney General is authorized to grant federal funding for only up to
75% of the total costs of the program, unless this requirement for matching state or local contributions is waived by the Attorney General.
324. DeWine, supra note 14, at 1.
325. Id.
326. More Humane Treatment, supra note 287, at A13.
327. DeWine, supra note 14, at 1.
328. S. 2639, 107th Cong. (2000). Senators Domenici, Kennedy, and Wellstone sponsored
a bill to amend the Public Health Service Act to provide programs for the treatment of mentally
disordered persons, including the creation of a federally-funded mental health court grant program.
2000]
Mental Health Courts
court supervision to the maximum length of the sentence for the
pending charge.329 Mr. Chris Koyanagi, Bazelon Director, expressed
support for S. 2639 because it allows state MHCTs to assist "those
as seriously mentally ill offenders
who fall through the cracks" as well
3 a°
charged with more serious crimes.
The position taken by Representative Strickland, Senator DeWine, and Senator Dominici finds support with the NAMI position,
which also firmly endorses the establishment of MHCTs and the
transfer of nonviolent offenders from prisons and jails into treatment
centers.33' Likewise, the American Jail Association, the American
Correctional Association, the American Sheriffs Association, and the
National Mental Health Association endorse the creation of state
MHCTs.33 2 With the recent passage of the ALEMH Project legislation, organizations interested in MHCT diversionary programs are
encouraged to support the establishment of MHCTs nationwide.
Like congressional MHCT proponents, NAMI argues for a preventative law approach that uses allocated funds in community law
enforcement programs to establish crisis intervention teams designed
to reduce criminal recidivism among mentally ill clients.333 NAMI
recognizes that police should be educated to appreciate that such crisis
teams, in linking offenders to treatment, function to "help make the
community safer. ' 334 NAMI also supports access to mental health
treatment through either private health insurance or governmentfunded medical programs.
NAMI is critical of the shortage of police training regarding
mental illness, noting that police in 84% of the country's jails have less
than three hours training in this area. 33 ' NAMI proposes that federal
laws be amended to allow states to use prison funds obtained under
to improve
the Violent Offender and Truth-in-Sentencing grants
336
diagnosis and treatment of the incarcerated mentally ill.
329. Judge David L. Bazalon Center for Mental Health Law, Comprehensive Mental Health
Bill Introduced: Fast-Track Legislation Would Expand Services, Study Outpatient Commitment
(visited Nov. 27, 2000) <http://www.bazelon.org/600mhbill.html>.
330. Chris Koyanagi, Letter to the Sponsors of New Mental Health Legislation (visited Nov.
27, 2000) <http://www.bazelon.org/newmhlegisltr.html>.
331. See Mentally Ill Need More Than Cells: Jails and Prisons are Ill-Equipped to Help
Disturbed Inmates, DAYTON DAILY NEWS, July 18, 1999, at 12B.
332. See DeWine, supra note 14, at 2.
333. Id.
334. Dvoskin & Steadman, supra note 220, at 682 (observing that the goal of diversion
treatment programs is not to "help... people with mental illness avoid responsibility for crime,"
but instead to create safe communities).
335. See NAMI Calls for Congressional Hearings Following Justice Department Report, PR
NEWSWIRE, July 12, 1999.
336. See id.
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[Vol. 24:373
Similarly, at the state level, California Senator Wesley Chesbro
(D-Arcata) has promoted Senate Bill 1769; this bill would create mental health courts to which mentally ill offenders would be diverted,
"where judges, with the help of therapists and other experts, would
order various types of treatment, instead of sending the individuals to
prison. 33 7 Senator Chesbro's companion bill, Senate Bill 1770,
"would require people to receive detailed treatment plans when they
are released from state hospitals," rather than being released without
care. 338 Unfortunately, California Governor Grey Davis recently
vetoed both S.B. 1769 and S.B. 1770. 339
Two California bills, A.B. 1762 and A.B. 1718, would improve
police interface with the mentally ill, responding to reports that, since
1994, there were 25 shooting deaths of mentally ill people by the Los
Angeles police. 340 A.B. 1718 was approved by the Governor to provide for a continuing education training program for law enforcement
officers, instructing them in the proper handling of persons with
mental illness and developmental disabilities. In spite of his recent
vetoes of some mental health programs, this year California Governor
Gray Davis began a $10 million program "aimed at bringing homeless
mentally ill people off the streets and into treatment. "341 California
legislators called this pilot program "an unmitigated success" that
"needs to go well beyond $10 million. "342 Within four months of its
337. Dan Morain, Care for the Mentally Ill Emerges as Key Issue; Politics: Legislative
Leaders Seek to IncreaseFunding and Overhaul System, L.A. TIMES, Mar. 2, 2000, at A3. Senator
Chesbro's California Senate Bill 1769 provides for appropriations from the General Fund by the
Board of Corrections, State Department of Mental Health, and State Department of Alcohol and
Drug Programs to award grants for the establishment of mental health courts.
338. Id.
339. See Governor Grey Davis Veto Message on S.B. 1769 (visited Oct. 15, 2000) <http://
(vetoed
www.leginfo.ca.gov/pub/99-00/bill/sen/sb_1751-1800/sb_1769_vt_20000929.html>
on Sept. 29, 2000). Governor Davis' veto letter stated that the 2000-01 Budget Act already
included $1.8 billion for mental health, a $155 million increase in funding. However, this Act
fails to specifically fund programs that establish MHCTs and divert mentally ill persons from
the criminal justice system into treatment. Id.; Governor Grey Davis Veto Message on S.B. 1770
(visited Oct. 15, 2000) <http://www.leginfo.ca.gov/pub/99-00/bill/sen/sb_1751-1800/
sb 1770 vt_20000928.html> (vetoed on Sept. 28, 2000) (stating that counties, as well as
programs such as the Integrated Services to Homeless Adults and the Mentally Ill Offender
Crime Reduction Grant programs, should provide mental health services to residents of
communities).
340. Morain, supra note 337, at A3. See Cal. Penal Code § 13515.25 (2001) (entitled
"Continuing education as to disabled and mentally ill persons"); 200 Cal. A.B. 1718; 2000 Cal.
A.L.S. 200; Stats 2000 ch. 200 (approved by the Governor on July 24, 2000 and providing for a
continuing education training course to be developed in conjunction with various organizations,
agencies, and consumer and family advocacy groups with expertise in mental illness and developmental disabilities).
341. Id.
342. Id.
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inception, the program has reportedly already helped to remove 1,000
people from Northern and Southern California streets.
In New Jersey, Assemblyman LeRoy J. Jones, Jr. recently introduced A.B. 2355 to establish the Mental Health Court Pilot
Program34 3 to divert nonviolent mentally ill and mentally retarded
offenders from incarceration into treatment. Under this bill, mentally
disordered or retarded defendants charged with nonviolent petty
offenses would be transferred to the Mental Health Court Pilot Program for diversion into treatment in a "short-term care facility" as a
voluntarily admitted patient until release.
Thus, recent passage of the ALEMH Project legislation with the
concomitant Congressional endorsement of the establishment of demonstration MHCTs provides states and local governments with the
impetus, political support, and financial resources necessary to begin
effecting necessary societal transformations in the humane treatment
of the mentally ill. It is predicted that states, local governments, and
communities will now immerse themselves in the immediate task at
hand, creating both supportive programs for the formation of new
MHCTs and ancillary programs, preserving the Congressional intent
to divert the mentally ill from the criminal justice system into
treatment.
C. Computing Projected Economic Savings of Mental Health Courts
State and local governments should consider the potential economic savings that result from establishing MHCTs. However, since
information regarding anticipated cost savings for recently created
state MHCTs is limited, estimated cost savings for MHCTs may be
analogized, at present, from similar state family and drug court programs.
As a baseline, it has been estimated that in Broward County, it
costs approximately $65 to $100 per day to house mentally ill offenders in jail.344 One preliminary report indicates the costs of incarceration may be dramatically reduced by treatment, yet, state agencies
understandably hesitate to pay high initial start-up costs of up to $350
per day to treat mental illness without demonstrably justified downstream cost savings.345
However, cost savings for drug court-mandated drug treatment
programs are projected to be substantial, estimated at approximately
343. A. 2355 209th Leg. (N.J. 2000) Assemblyman Jones introduced a "Mental Health
Court Pilot Program" bill on May 8, 2000. Id.
344. Baker, supra note 170, at 4.
345. Id.
Seattle University Law Review
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$5,000 per jailed inmate. 346 The average cost for treating drug addicts
in jails ranges between about $900-$1,600 per participant. If the
client was originally a state or federal prisoner, annual cost savings can
approach $20,000 per client, since successful treatment reduces the
need for prolonged incarceration or reimprisonment for repeat
offenses. 3 ' Significant cost savings-including reductions in the costs
incurred in traditional courts for prosecution and trials-justify the
existence of various specialty courts.348 For example, in King
County's drug court, the cost savings to taxpayers are estimated to be
$522,000 in the first three years due to successful rehabilitation of
drug court clients.349
Family court critics condemn the high costs and redundancy of
specialized courts. 3" ° These critics argue that generalist trial court
judges can learn to be as competent as their specialist judge counterparts."' However, recent studies show that family courts result in
substantial long-term cost savings due to increased judicial efficiency,
economy, competency, and quality of adjudication, accompanied by
smooth coordination among judicial, criminal justice, and treatment
personnel.35 2 Clearly, follow-up investigation is necessary to substantiate these initially encouraging findings of significant economic
savings for these various state specialty courts.
D. Proposed FurtherInvestigation of the Role of Mental Health Courts
(MHCTs) in Reducing CriminalRecidivism Rate
Preliminary reports indicate that MHCTs have been effective in
reducing rates of criminal recidivism among mentally ill offenders.3 53
346. See DRUG COURT RESOURCE CENTER, U.S. DEP'T OF JUSTICE, PRELIMINARY
ASSESSMENT OF THE DRUG COURT PROGRAM EXPERIENCE 1 (1995) [hereinafter PRELIMINARY ASSESSMENT].
347. See Elaine R. Jones, The Failureof the "Get Tough" Crime Policy, 20 U. DAYTON L.
REV. 803, 804 (1995).
348. See PRELIMINARY ASSESSMENT, supra note 346, at 1.
349. See Elaine Porterfield, King Court to Specialize in Mentally Ill Offenders; Purpose Is to
Improve Both Justice and Treatment, Instead of Simply Sending People Back to the Streets, NEWS
TRIBUNE (Tacoma, WA), May 16, 1998, at Al (noting that savings of $322,00 over three years
in drug courts may indicate potential savings in specialty courts (e.g., MHCTs)).
350. See E. HUNTER HURST & JEFFREY A. KUHN, A FAMILY DEPARTMENT FOR THE
DISTRICT COURTS OF KANSAS: RECOMMENDATIONS FOR IMPLEMENTATION 7 (1993).
351. See E. Hunter Hurst, Judicial Rotation in Juvenile and Family Courts: A View from the
Judiciary, 42 JUV. & FAM. CT. J. 13, 15-20 (1991) (comparing the merits and disadvantages of
judicial rotation to family courts with dedicated judges); see also H. TED RUBIN & VICTOR
EUGENE FLANGO, COURT COORDINATION OF FAMILY CASES 36 (1992).
352. See HURST & KUHN, supra note 350, at 7.
353. All Things Considered, Broward County, Florida'sMental Health Court Helps ClearOut
Some of the Jail Populationby Dealing with the Mentally Ill Who've Committed Non-Violent Misdemeanors (National Public Radio, Mar. 12, 1999). Radio host Robert Siegel states that Broward
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According to Judge Lerner-Wren, more than 675 clients have entered
the Florida MHCT, and no defendant has committed an additional
violent crime to date.3" 4 This initial finding is consistent with a 1998
MacArthur Foundation study showing that "[m]entally ill people who
take their 5medications are no more dangerous than the population in
35
general. ,
Dr. Barbaree, a renown Canadian forensic psychiatric expert,
explains, "There are strong indications of reductions in recidivism
among those who receive treatment.P 356 Similarly, Dr. Janice Marques
of the California State Department of Mental Health has obtained
encouraging preliminary results in controlled longitudinal studies
utilizing sophisticated statistical analyses that indicate the effectiveness of psychological treatment of sex offenders.3 7
Likewise, the renown Dr. Karl Hanson has published metaanalyses suggesting that risk assessment for mentally ill offenders may
have immense value in providing valid scientific predictors of criminal
recidivism that are dynamic, rather than static. 3 5 8 Further research is
necessary to determine the long-term effectiveness of mental health
treatment in diminishing criminal, violent, and sexual recidivism
among mentally disordered defendants.359 In this regard, John Monahan cautions that "knowledge of the appropriate base rate [of a
targeted criminal behavior] is the most important piece of information
necessary to make an accurate prediction [of risk assessment for
offenders]."360
Similarly, drug specialty courts have had a measurable impact in
the "war against drugs." One report states, "Recidivism has been
significantly reduced for offenders participating in a drug court pro' For example,
gram."361
in Florida's Broward County drug court, 90%
County's MHCT has "cleared the Broward jails of an entire class of inmate, the mentally ill who
commit non-violent misdemeanors. It's a modest program but so far, recidivism is low." Id.
354. See Barker, supra note 8, at B1.
355. Jarvik, supra note 265, at A01.
356. Criminal System Begins to Recognize Health Issues: Focus on Treatment vs. Punishment,
J. ADDICTION & MENTAL HEALTH, Feb. 1999, at 11.
357. See generally Janice K. Marques et al., Effects of Cognitive-BehavioralTreatment on Sex
Offender Recidivism, Preliminary Results of a LongitudinalStudy, 21 CRIM. JUST. & BEHAV. 28
(1994). It should be noted that long-term longitudinal studies take several years to complete in
this treatment context.
358. See generally James Bonta et al., The Prediction of Criminal and Violent Recidivism
Among Mentally DisorderedOffenders: A Meta-Analysis, 123 PSYCHOL. BULL. 123 (1998).
359. See generally Marnie E. Rice, Violent Offender Research and Implicationsfor the Criminal JusticeSystem, 52 AM. PSYCHOLOGIST 414 (1997).
360.
See generally JOHN MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAV-
IOR 34 (1981).
361. See GAO and American University's Drug Court Resource Center Release Drug Court
Reports, NADCP NEWS, June 1995, at 2.
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[Vol. 24:373
of participants remained arrest-free.362 Likewise, Oregon's drug court
reported lowered re-arrest statistics as a result of successful treatment.363
In the same manner, 18 months after the court's inception, the
Miami drug court, with a heavy caseload of eighty defendants per
day ,3 4 has reported significantly lower rearrest rates and longer
periods between rearrests than traditional nondrug courts.365 Subsequent follow-up reports on long-term results are needed to determine
whether the Miami drug court has been successful in breaking the
vicious cycle generated between drug dependency and crime. Similarly, controlled scientific investigations are needed to assess the
effectiveness of court-ordered treatment intervention in curtailing
reoffenses by mentally ill offenders.
In a preventative law approach, MHCT advocates note that
"[b]etter training and sensitivity on the part of law enforcement
officers" might result in fewer arrests of mentally ill clients for petty
crimes as well as the channeling of mentally ill clients toward community mental health programs.36 6 Critics maintain that "[police] have a
misunderstanding of the mentally retarded [and mentally ill]. They
not. '936 1
are very excitable. Police see them as a threat, but they are
For example, in one recent, tragic story, the Los Angeles Police Commission found that a "5-foot-i, 102-pound[,] mentally ill woman
'brandishing a screwdriver' did not pose a deadly threat to two bicycle
patrol officers" who shot and killed her.368
362. See Brown, supra note 128, at 93 (citing Ronnie Green, Drug Court Audit Praises
'FavorableResults,' But PansJudge, HERALD, Feb. 18, 1996, at 3).
363. See Mark Curriden, Drug Courts Gain Popularity, A.B.A.J., May 1994 at 16, 18.
Mark Curriden cited rearrest rates after six months as 6% for those completing the treatment
program and 24% for those not completing the treatment program. Id. At completion of the
program, 15% of graduates reoffended versus 54% of program drop-outs. Id.
364. See FINN & NEWLYN, supra note 231, at 3.
365. See id. at 2. See also John S. Goldkamp, Miami's Treatment Drug Court for Felony
Defendants: Some Implications of Assessment Findings, 73 PRISON J. 110, 126-27 (1994).
366. Baker, supra note 170, at 4. See also Torrey, supra note 9, at 12 (stating that "effective
pre-booking jail diversion programs" are important aspects of law enforcement programs where
officers "spend[] increasing amounts of their time responding to psychiatric crises and must
decide whether to take the person to a mental health center or to jail.").
367. Baker, supra note 170, at 5.
368. Scott Glover & Matt Lait, Police Slayings of Woman Violated Policy, Panel Says, L.A.
TIMES, Feb. 16, 2000, at 1 (noting that the Police Commission "found the fatal police shooting
of a frail homeless woman.. . violated department policy."). See also Investigators Say Abuse of
Involuntary Commitment Law Led to Shooting Deaths of Disabled Men (May 19, 2000) <http://
www.pai-ca.org/prVaughnNoble.htm>. Catherine Blakemore, Executive Director of Protection
& Advocacy, Inc., notes that a lack of adequate police training and the absence of mental health/
law enforcement interagency cooperation resulted in police officers killing two nondangerous
mentally disabled men who refused involuntary hospitalization. Id.
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Law enforcement reformers may be encouraged by Seattle's progressive King County program, which permits police to take mentally
ill offenders who have committed nonviolent crimes directly to the
Community Psychiatric Clinic's treatment facility for immediate medical attention instead of arresting them.369 Similarly, in Los Angeles
County, a special team consisting of a trained law enforcement officer
and mental health professional investigates potentially mentally disordered persons to determine whether the person "should be hospitalized, can returned to a safe environment with responsible relatives
or friends, or needs to be booked in jail."37 Judge Shabo notes that
these teams have significantly reduced arrests and bookings in jails.371
Over a period of six years, approximately 1600 violent confrontations
and 3,500 arrests have been prevented. Judge Shabo comments,
State and local governments should be encouraged to replicate
these relatively inexpensive programs where feasible in order to
divert out of the criminal justice system at the earliest stage
those who need not be there and to ensure appropriate disposition of law enforcement contacts in favor of community based
mental health treatment.372
Further scientific investigation is necessary to follow the longterm impact of newly-instituted law enforcement programs upon
reduction of crime by the mentally ill.
E. MHCT Judges in the News Media as Advocates of Treatment of
Mental Illness as a Disease
MHCT judges are highly visible advocates in the news media
and they possess unique opportunities to represent the need for community support, treatment, and rehabilitation programs for mentally
ill clients in a manner consistent with the concern for public safety.373
For example, Judge Lerner-Wren of Florida's MHCT regularly states
to news reporters, "Individuals who are ill should be in hospitals, not
369. Id.
370. Shabo, supra note 11, at 4 (noting that a special team checks for treatment compliance
a few days after the incident to ensure the well being of potentially mentally disordered individuals who are not imprisoned, but are either hospitalized or returned to safe environments).
371. Id.
372. Id. at 7.
373. See Roberts et al., supra note 130, at 19 (observing the virtual impossibility of identifying the potential for criminal recidivism while offenders are in treatment). This recurring
concern is also important in situations where prosecutors argue, based upon past crimes, that a
mentally ill client will reoffend, while defense and medical experts argue that dynamic factors
more appropriately predict future criminal recidivism and should be used out of constitutional
fairness concerns to defendants. Id.
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[Vol. 24:373
jails. ' 374 She recently noted that the Henderson Mental Health Center
outpatient program, called Positive Alternatives to Medication, "is
designed to give the mentally ill some quality of life," and is an alternative to more costly mental facility treatment that may cost up to
$350 per day.3
New MHCT judges may correctly perceive that mentally ill
patients are "a hard population to sell" since "[t]here's a tremendous
stigma related to the mentally ill. They're a population that's easy to
ignore."376 Yet, Good Morning America recently featured a television
broadcast highlighting this issue, stating, "nearly a quarter of a million
Americans with mental illness.. . end up in prison instead of getting
the kind of treatment they need. 377
On this television program, Florida's Judge Lerner-Wren noted
"the [mental health] court could do more than just be an adjudicator
of charges, but could actually take an active role in the treatment of
people coming before it. ' '3 78 Similarly, California's Judge Shabo serves
on the National Working Group on Adult Offenders with Mental
Health Needs, advises the Council of State Governments, and appears
before the California Legislature; he is a visible spokesperson speaking
publicly on a variety of mental health issues.3 79 Thus, it is clear that
progressive MHCT judges have the opportunity to publicize and
correct societal misconceptions concerning mentally ill offenders and
to promote the acceptance of diversionary treatment programs.
Washington's King County MHCT has a unique Internet website that publishes a MHCT fact sheet, task force recommendations,
press coverage, downloadable sample court forms, mental health reSuch computerized systems should
source links, and photographs.'
374. Diaz, supra note 229, at 17A.
375. Id.
376. Marino, supra note 4, at 2.
377. Good Morning America I, supra note 5. See also Good Morning America (ABC television broadcast, Jan. 26, 2000). [hereinafter Good MorningAmerica II].
378. Good Morning America II, supra note 377.
379. Shabo, supra note 11, at 3. Judge Shabo has discussed various issues, including the
plight of the mentally ill who, while in prisons and jails, suffer the loss of their SSI benefits after
30 days of incarceration. This is the result of an unfortunate "gap in the law" that cripples the
ability of released patients to receive treatment and contributes to the "revolving door" cycle of
homelessness, incarceration, rehospitalization, and release. Id. See also Interview with Judge
Harold E. Shabo in Los Angeles, Cal. (Feb. 12, 2000). Judge Shabo notes the Working Group's
research reveals that CFR § 416.211 and § 202 of the Social Security Act permit state officials to
immediately discontinue a mentally disordered defendant's benefits (Social Security Disability
Insurance (SSDI), Supplemental Security Income (SSI), or Medicaid) upon incarceration. Id.
When a mentally disordered inmate is released from incarceration, he often cannot obtain
medical treatment for his psychiatric illness unless a reapplication for benefits has been processed
by correctional facility personnel well in advance of his release date. Id.
380. King County District Court, Mental Health Court Home Page (last modified Nov. 26,
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Mental Health Courts
be developed in other jurisdictions to permit mutual communication
and sharing of "best court practices" consistent with the principles of
total quality management (TQM) commonly utilized in business.
Judges can best serve the interests of justice by focusing public
attention on a newsworthy rehabilitated offender's successes as well as
his or her needs for housing, vocational training, education, and
employment placement.3"' Richard Guy, Chief Justice of the Washington State Supreme Court, states,
As our society enters the new millennium, we all face new challenges and changing priorities.... Together, we can insure that
our courts provide equal justice for all. I urge you to write to
or senators with your opinions on the
your state representatives
82
future of our judiciary.
F. CurrentProgressin CreatingState Mental Health
Courts of the New Millennium
At the dawn of the twenty-first century, progressive states have
the opportunity to investigate the successes of mental health courts in
jurisdictions such as California, Florida, Alaska, Toronto, and Washington to determine whether establishing such novel specialty courts
83
will meet the changing mental health needs of their communities.
For example, Utah's Division of Mental Health is exploring the creation of a MHCT as a "common sense approach to dealing with the
2000) <http://www.metrokc.gov/kcdc/mhhome.htm>. The fact sheet notes that the King
County MHCT hopes to obtain "faster case processing time, improved access to public mental
health treatment services, improved well-being, and reduced recidivism" for mentally disordered
defendants charged with misdemeanor crimes. Id. The Author thanks Judge Jim Cayce, Presiding Judge of the King County MHCT, for sharing valuable information concerning his court's
operations.
381. See Drug Court Implementation Initiative, supra note 232, at 14; Roberts et al., supra
note 130, at 7.
382. Guy, supra note 303, at B8.
383. See Dennis Romboy, State Studies Mental Health Courts, DESERT NEwS (Salt Lake
City), Aug. 26, 1999, at B5 (noting that mental health workers, court personnel, and law enforcement officials will travel to Seattle to study the Washington MHCT). Alaska and Florida have
also begun MHCTs. Id.; Wickham, supra note 295, at Al (noting that Osceolo County is beginning a new MHCT). Many other states are considering establishing MHCTs as well. See A
Man Accused of Slashing a TTC Streetcar Driver Has Been Found Fit to Stand Trial, TORONTO
STAR, Mar. 11, 1999; Nash, supra note 298, at A4 (noting that Albuquerque city officials hope
to obtain state funding for a pilot program to establish a MHCT); Real Help for Inmates, DENVER POST, Nov. 14, 1999, at G4 (stating that legislative committee is contemplating creating a
Colorado MHCT to deal with mentally ill offenders guilty of minor offenses); Randy McNutt,
Court for Mentally Ill Offenders Advocated; Judicial Officials at Seminar Told Treatment Is Lacking, CINCINNATI ENQUIRER, Nov. 10, 1999, at B2 (noting Butler County has been promised
$370,000 in operating funds for a MHCT, with additional financial support expected).
Seattle University Law Review
[Vol. 24:373
384
growing number of mentally ill inhabiting county jails and prisons. ,
A multiagency team was recently scheduled to visit Washington's
MHCT to study the methods by which incarcerated clients are channeled into outpatient or inpatient treatment programs under judicial
supervision.38 5
After two fatal shootings in Salt Lake City by mentally ill offendGovernor Mike Leavitt requested that the state Mental
Utah
ers,
Health Board study the potential for rehabilitating mentally disordered patients through the creation of a state MHCT.386 His proposed
2001 budget provided funding for a Program for Assertive Community Treatment (PACT), giving "comprehensive care from a team
of physicians, nurses and social workers on a round-the-clock
basis. ' 387 Six states have extensive PACT programs, and nineteen
others have pilot programs.388
Dr. Fuller Torrey, President of the Treatment Advocacy Center
in Virginia commented on these Utah shootings that "it may be...
that the threat of violence will finally get public mental health agencies
the law and funding they need. ' 389 This would put an end to the
perceived apathetic "collective shrug" encountered in response to the
"pathos of the homeless [and imprisoned] mentally ill." 3"'
In affirmative response, the Division of Mental Health has procured 75 beds in the Utah State Hospital's new forensics unit, allowing
the unit to conduct psychiatric diagnostic evaluations of defendants
awaiting trial and house criminal defendants found by the courts to be
either mentally incompetent or mentally ill. 39 1 Moreover, the Utah
State Prison will open a 140-bed unit at its Olympus Forensic Mental
Health Facility, staffing it with psychiatric technicians and corrections
384. Mental Health Courts Worth a Look, DESERT NEWS (Salt Lake City), Aug. 31, 1999,
at 1.
385. Id. at 1.
Such a court could have diverted the Triad Center and LDS Family History Library
shooters into treatment on their first offenses. Both shooters had previously committed misdemeanor offenses, and each suffered from mental illness. All of that is Monday-morning quarterbacking, of course. But it has become increasing apparent that
Utah must do more to address the growing number of mentally ill people behind bars.
More than 600 people with mental illnesses are in the state prison system, where they
now receive arguably little treatment.
Id.
386.
387.
388.
389.
who shot
390.
391.
Romboy, supranote 383, at 1.
Jarvik, supra note 265, at Al.
Id.
Id. (noting that a second Utah incident in April 1999 involved a Russian immigrant
and killed library patrons before being killed by police).
Id.
Romboy, supra note 383, at 1.
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Mental Health Courts
officers.392 Even with these plans, John Pace of Utah's Disability Law
Center adds, "We need more resources for (caseworkers) [sic] to go out
to see clients. We need more housing for the
in the community
3 93
mentally ill."
Finally, Utah has already instituted a pilot preventative Crisis
Intervention Team program in conjunction with law enforcement to
help police officers identify mentally ill citizens who may be channeled
into mental health treatment services prior to any escalation into problematic criminal behavior.394 Mental health staff members are training
law enforcement and correctional facility personnel to recognize and
handle individuals with mental illnesses, enabling those individuals to
receive necessary treatment. 395 For example, police now may recognize that misdemeanor clients who have been imprisoned for more
than two days and have not attempted to be released may need psychiatric help. Susan McCampbell, Director of Florida's Broward County
Department of Corrections and Rehabilitation, states that this acquiescent, counter-intuitive behavior could be a significant early indicator
of mental illness in the detection of MHCT candidates who may be
referred to defense attorneys or social workers for follow-up and
monitoring.396
Similarly, Richard Davenport of Des Moines, Iowa comments
that law enforcement departments should have officers trained to
defuse innocuous situations involving the mentally ill to prevent
potentially fatal shootings.397 Likewise, Linda Priebe of the Bazelon
Center for Mental Health Law notes that a federal jury's $5.4 million
dollar award to a mentally ill defendant-"the largest damage award to
a person with a mental illness for lack of mental health treatment in a
jail"--deters "reckless indifference" by the correctional system toward
mentally disabled defendants, such as denying medical care to a
mentally disabled defendant and unconstitutionally punishing him
through solitary confinement.398 She continues:
392. Id. at 2.
393. Jarvik, supra note 265, at Al.
394. Romboy, supra note 383, at 1.
395. Id. at 2.
396. Specialized Courtfor Mentally Ill, supra note 200, at 2.
397. Lynn Hicks, Police Consider Crisis Teams to Help Mentally Ill, DES MOINES REGISTER, Oct. 20, 1999, at 1.
398. Judge David L. Bazelon Center for Mental Health Law, FederalJury Awards $5.4 Million in Damagesfor Solitary Confinement of Prisonerwith Schizophrenia 1-3 (visited Mar. 6, 2000)
<http://www.bazelon.org/lawsonpg.html>. The jury awarded a schizophrenic patient, unjustly
held in solitary confinement for more than 65 days, $400,000 in compensatory damages for pain
and suffering and $5 million in punitive damages. Id. Linda Priebe, Bazelon Center senior
attorney, observes, "it's an extraordinary award in any context, because our legal system generally values the lives of people with mental disabilities as worth less than others; and as having
Seattle University Law Review
[Vol. 24:373
This case sets an important precedent .... It sends a strong
message to both jail and mental health administrators that the
public is concerned about the increasingly widespread incarceration of people with mental illnesses in jails and prisons and their
inadequate treatment there.399
Overcrowding at the nation's jails is prevalent and results from
tough anticrime legislation such as Washington's "three strikes"
law.4 °0 Notwithstanding diminishing crime rates in cities, some law
enforcement officers place the mentally ill in jails as "mercy bookings," designed to guarantee food and shelter to needy individuals.40 '
Most jails and correctional facilities lack treatment facilities for mentally ill inmates, and only 51% of incarcerated clients interviewed by
the Justice Department report receiving any treatment at all.4" 2
A few forward-looking correctional facilities, such as Ohio's
Cuyahoga County jail, possess an organized system for diagnosing and
treating mentally ill clients.40 3 There, psychiatrists, nurses, and fellows from the University Hospitals Fellowship in Forensic Psychology
program diagnose the mental disorders and diseases of inmates. At
these Ohio jails, assigned mental health caseworkers monitor treatment and facilitate communication between mentally disordered
patients and the courts, guiding clients either to state hospitals for
therapy or transitioning rehabilitated patients back into the community.
Echoing the Utah experience, Ohio commentators support both
"additional training for law enforcement officers and establishing a
'mental health court,' as other cities have done." ' 4 It is encouraging
that Governor Gray Davis may consider signing California bill AB34,
which proposes to fund a $10 million pilot program to "expand existeven less value if the person has been accused of a crime." Id.
399. Id. at 3.
400. Kery Murakami & Nancy Bartley, Wallenstein Brought Creativity to Jail Job-Sims
Lauds Directorfor FindingInnovative Solutions to Crowding, SEATTLE TIMES, Aug. 18, 1999, at 1
(a county task force report predicting that the county will require a third jail by 2004).
401. First, Finish the Study, DENVER POST, Sept. 24, 1999, at B6.
402. Marino, supra note 4, at 2.
Mentally ill offenders committed to jails and prisons often are abused and sometimes
killed by correctional authorities, ignorant of the signs and symptoms of mental
illness.... The inappropriate use of force and infliction of punishment upon inmates
who are incapable of obeying orders and understanding the reason for punishment
must stop. Appropriate training and rigorous compliance with procedures designed
specifically to deal with mentally ill offenders are indispensable in this regard.
Correctional officers who violate such procedures should be promptly and predictably
sanctioned in order to deter mistreatment of mentally ill offenders.
See Shabo, supra note 11, at 11-12.
403. Id. at 2-3.
404. Id. at 3.
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ing services [to the homeless] through intensive outreach in order to
determine the impact those services have on keeping people with
mental illness out of jail."4 ' More programs are urgently needed to
investigate the beneficial effects of treatment on reducing rates of
criminal recidivism and incarceration. Judge Harold Shabo notes,
"Effective mental health treatment requires that the system address all
components of an individual's needs, from medications to employment to housing to education. "406
G. Proposed Model Legislation: The Mental Health
Court DiversionAct
The proposed Mental Health Court Diversion Act (hereinafter
MHCT Diversion Bill), which appears in Appendix A of this Article,
was drafted for use by state governments, legislators, judges, administrators, academians, hospitals, law enforcement, mental health professionals, correctional facilities, and others who wish to investigate and
promote legislative support for the establishment of state mental
health specialty courts for the just treatment of mentally ill offenders.
This model legislation incorporates statutory language consistent with
the objectives of therapeutic jurisprudence and preventative law in the
diversion of qualified mentally disordered defendants from correctional facility settings into treatment. The MHCT Diversion Bill is
designed to provide long-term cost savings by breaking the predictable
but costly "revolving door" pattern of a mentally disordered offender's
homelessness, reoffense, incarceration, and release.
The Bill provides for the creation of state-funded pilot MHCTs
as focal points to centralize the case management of qualifying mentally disordered defendants; its goal is to diagnose, treat, hospitalize,
and rehabilitate mentally disordered defendants, potentially returning
them to the community as productive members of society through
court probation and conditional release programs. The Bill also
includes a procedural "safety net" to ensure that constitutional due
405. California Poisedto Expand Services, Outreach to Homeless, 11 ALCOHOLISM & DRUG
ABUSE WEEKLY, Sept. 27, 1999, at 5.
406. Shabo, supra note 11, at 3, 8, 11. Judge Shabo comments, "[tihe court should play the
central role of enforcing interagency cooperation and accountability just as the court evaluates the
individual's compliance with treatment." Id. He adds,
It is unrealistic to expect that a person attempting to fend for himself/herself without
housing, a dependable income source, and without the other necessary attributes of
personal stability and security is going to participate in mental health treatment or be
treatment compliant .... [Tihe release of patients and inmates without income
support plays a major role in the problems of homelessness, rehospitalization and
incarceration of persons with persistent and serious mental illness.
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[Vol. 24:373
process rights of mentally disordered defendants are retained throughout judicially-monitored treatment plans and court proceedings.
Annual funding of one million dollars per year is given as a realistic
amount that would permit the initial establishment of approximately
2-3 pilot state MHCTs. Larger states might appropriate greater
amounts for the creation of additional experimental MHCTs, whereas
smaller states might commit lesser sums for such courts. State and
local courts and governments may obtain federal funding for up to
75% of their MHCT programs through the recently enacted ALEMH
Project.
The MHCT Diversion Bill creates an independent Evaluation
Committee whose purpose is to assess the impact of MHCTs in
enhancing judicial efficiency and economy, decreasing high correctional facility costs, promoting efficacy of treatment, and reducing
rates of criminal recidivism. States may determine their own levels of
financial commitment and the duration of pilot MHCT programs. As
a guideline, recently proposed federal bills have suggested that to
cover costs of operation, each newly established MHCT should be
provided with approximately $400,000 per year for five years.40 7 The
projected annual costs for the year 2000 for the King County MHCT
program were estimated to be approximately $650,000.408 MHCT
advocates are encouraged to tailor this proposed MHCT Diversion
Bill to meet their state's specific jurisdictional, financial, logistical, and
other related needs for judicial and/or legislative reform. In addition,
Congressional MHCT proponents may wish to utilize concepts presented in this Bill to synergistically strengthen proposed federal
programs for creation of state MHCTs.
H. Creation of MHCTs by JudicialAdministrative Order
Florida's Broward County MHCT was created on May 22, 1997
by Dale Ross, Chief Judge, in accordance with Rule 2.050 of the Florida Rules of Judicial Administration. The Administrative Order for
"Creation of a Mental Health Court Subdivision within the County
Criminal Division" is provided in Appendix B of this Article. This
Order establishes that a "part time Mental Health Subdivision shall be
operational within the County Criminal Division," with Judge Ginger
407. See note 310 and accompanying text (noting Representative Strickland's bill provides
$300,000 per year in federal funding with up to $100,000 in matching state funding). See also
H.R. 2594, 106th Cong. § 1 (1999).
408. Personal Communication from Kari Burrell, Program Manager, Mental Health Court,
Office of the Presiding Judge, King County District Court (August 1, 2000) (noting that the
total projected annual costs for the MHCT were $634,947, including costs for the district court,
court monitoring and treatment, prosecution, and defense).
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Lerner-Wren presiding as magistrate. It is particularly noteworthy
that the court's role is explicitly specified as monitoring the functions
of the "Department of Children and Family Services, Henderson
Clinic, Nova Southeastern Outpatient Care Clinic, private mental
health providers, County Court Probation, and Pretrial Services of the
Broward Sheriffs Office."
The courts' supervision of mentally disordered defendants' treatment plans is critical to the success of any diversion program. State
Chief Justices or Court Committees may wish to consider drafting a
judicial order to establish similar pilot MHCT programs in their jurisdictions.
VII. CONCLUSION: JURISPRUDENTIAL FOUNDATIONS OF
MENTAL HEALTH SPECIALTY COURTS REVISITED
Judge Jack Weinstein, an ardent advocate of therapeutic jurisprudence and preventative law, maintains that specialized courts must
be placed "in a social context, as part of a web of institutions" that
allows citizens to live together peaceably. Legal institutions should
not exist in a vacuum, but in "a larger ecology in which various dispute institutions interact." He continues,
As these interconnections become common knowledge, those
who would design or justify legal institutions must accept
responsibility not only for the small world of adjudication, but
for the
larger world of disputing and bargaining in which it is
9
set.
40
Thus, progressive MHCT reformers are advised to maintain a
unified, cohesive vision to maximize justice for mentally ill defendants
and to consider complex interactions with existing legal systems, families, and society. Advocates of such an ecological approach 410 encourage courts -"to look beyond the individual litigants involved in
any... matter, to holistically examine the larger social environments
legal remedies that
in which participants live, and to fashion
411
relationships.P
supportive
strengthen...
Proponents of therapeutic jurisprudence support MHCT judges
and other concerned advocates in participating proactively in the
adjudication process as "healers" in a court "that restores people to
409. Jack B. Weinstein, Some Benefits and Risks of Privatizationof Justice Through ADR, 11
OHIO ST. J. ON Disp. RESOL. 241, 248 (1996).
410. See generally URIE BRONFENBRENNER, THE ECOLOGY OF HUMAN DEVELOPMENT
(1979).
411. See Barbara A. Babb, An InterdisciplinaryApproach to Family Law Jurisprudence:
Application of an Ecologicaland Therapeutic Perspective, 72 IND. L.J. 775, 803 (1997).
Seattle University Law Review
[Vol. 24:373
their integrity and overcomes undesirable conditions, ' '412 rather than
merely accepting the traditional, generally passive approach to
decision-making.4 13 Proactive MHCT judges therefore should be
expected to exhibit a greater degree of patience, respect, and empathy
in their implementation of the judicial process.414 Optimally, a
MHCT judge's integrated therapeutic jurisprudence and preventative
law approach toward the resolution of cases involving mentally ill
clients should mobilize a cadre of attorney advocates, clinicians,
therapists, social workers, treatment and correctional facility administrators, law enforcement personnel, employment counselors, mediators, probation officers, and other committed professionals.415
Professor David Finkelman notes that application of therapeutic
jurisprudence to mental health law and other fields "promises to reinvigorate the area and, if successful .... to produce ... better treatment
for those who find themselves involved in the mental health sys'
tem."416
He encourages those "thoughtful individuals who occupy the
front line of forensic mental health services" to "gather observations to
feed the debate [concerning therapeutic jurisprudence], to challenge it,
and to test its heuristic value in a world dominated by complex political and practical demands."41' 7 The promotion and creation of state
412. Susan Snow & Steve Friedland, The Judge as Healer: A Humanistic Perspective, 69
DENV. UL. REv. 713, 713 (1992).
413. Id. at 714.
414. Cf. id. at 716. Snow and Frieldand observe that the traditionally neutral role of the
trial court adjudicator may be frustrating for judges.
The growing size and complexities of many court systems.., aggravates the perception that one is on an assembly line, since a given judge may only handle a small
aspect of the case before it moves on through the system. This is less than satisfying
for judges.., because they may never see or know the final outcome. Removed from
the results of their own labors, as well as the people involved in the cases they have
dealt with, it is understandable that judges come to feel disconnected from the individuals who appear in their courtroom.
Id.
415. See Lynne M. Kenney & Diane Virgil, A Lawyer's Guide to Therapeutic Interventions
in Domestic Relations Court, 28 ARIZ. ST. L.J. 629, 635-38, 641 (1996). See also Deborah Doffman, Through a Therapeutic JurisprudentialFilter: Fear and Pretextuality in Mental Disability
Law, 10 N.Y.L. SCH. J. HUM. RTS. 805, 819 (1993) (emphasizing that treatment providers, such
as psychiatrists and social workers, who utilize therapeutic jurisprudence approaches must introspectively investigate their own underlying reasons for selecting treatment choices to "assess ...
why [they] are making this choice" to ensure that the client's expressed interests and desires are
reflected).
416. David Finkelman & Thomas Grisso, Therapeutic Jurisprudence: From Idea to Application, 20 N.E.J. ON CRIM. & CIV. CON. 243, 248 (1994). See also Joel Haycock, Speaking Truth
to Power: Rights, TherapeuticJurisprudence, and Massachusetts Mental Health Law, 20 N. ENG.
J. ON CIV. & CRIM. CONFINEMENT 301, 317 (1993) (commenting that "the success of therapeutic jurisprudence will depend in part on the degree to which it empowers the objects of
therapeutic and judicial attention.").
417. Finkelman & Grisso, supranote 416, at 252.
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447
mental health specialty courts is consistent with the objectives of
therapeutic jurisprudence and preventative law because it facilitates
the treatment and rehabilitation of mentally ill offenders for their
return to society as constructive members of their respective communities.
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[Vol. 24:373
APPENDIX A: MENTAL HEALTH COURT DIVERSION ACT418
LeRoy L. Kondo and Judge Harold E. Shabo
A BILL:
To provide grants for the establishment of mental health courts
for the purpose of diverting mentally disabled offenders from the
criminal justice system into treatment programs with objectives of
rehabilitation, reducing criminal prosecution, and reducing costs of
incarceration while maintaining public safety.
SHORT TITLE:
This Bill may be cited as the "Mental Health Court Diversion
Act."
BACKGROUND:
The National Alliance for the Mentally Ill (NAMI) estimates
that 25-40% of the mentally ill population in America has experienced
contact with the criminal justice system. The American Jail Association states that between 600,000 and 700,000 mentally ill offenders are
booked in jails each year. The Department of Justice Bureau of
Justice Statistics (July, 1999) reported that over a quarter million
prison and jail inmates are mentally ill, comprising 16% of the correctional facility population nationwide. The National Law Center on
Homelessness and Poverty and the National Coalition for the Homeless estimate that at least two million Americans experience homelessness annually, with about 40-50% of them suffering from mental
disorders. Crowded jails and prisons have been utilized ineffectively
as surrogate mental hospitals, housing mentally ill offenders and
homeless individuals who are often convicted of nuisance crimes such
as loitering or panhandling. Law enforcement officers have periodically placed the homeless mentally ill in correctional facilities without
accompanying charges because local government is purportedly overwhelmed by the unmet needs of the poor and mentally ill. According
to a joint report of NAMI and the Public Citizen's Health Research
418. Correspondence regarding proposed legislation may be directed to the Authors c/o
The Seattle University Law Review or to LeRoy Kondo via e-mail at [email protected]. The
Authors wish to express appreciation to the following individuals for their comments and suggestions regarding this proposed legislation: Ronald Honberg, Legal Affairs Director, National
Alliance for the Mentally Ill (NAMI); Michael Thompson, Director of Criminal Justice
Programs, The Council of State Governments, Eastern Regional Conference, New York, N.Y.;
Steven Ingley, Director, American Jail Association; James Preis, Director, Mental Health
Advocacy, Los Angeles, Cal.; Melinda Bird, Paul Gerowitz, and Pamila Lew, Protection &
Advocacy, Inc., Los Angeles and Sacramento, Cal; and Professors Sande Buhai, Jan Costello,
and Scott Wood, Loyola Law School, Los Angeles, Cal.
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Group, approximately one-third of jails surveyed housed seriously
mentally ill individuals who had no criminal charges filed against
them, and most other jails held such persons on minor misdemeanor
charges consisting of disorderly conduct, trespassing, and drunkenness.
Since greater than one-fifth of jails lack even rudimentary mental
health services, it is predictable that many mentally ill patients experience further deterioration of their mental condition, leading some
inmates to commit suicide. Senator Michael DeWine notes, "Law
enforcement agencies and correctional facilities simply do not have the
means, or the expertise, to properly treat mentally ill inmates."
Furthermore, costs of housing mentally disordered offenders in
prisons and jails are exorbitantly high. Almost half of states report per
capita correctional facility costs for incarcerating prisoners to be
between $20,000 and $30,000 per year. These per capita expenditures
can rapidly approach astronomical figures: In 1996, annual state and
federal prison expenditures were $22 billion and $2.5 billion respectively. These expenditures include costs of operations; employee
wages, salaries and benefits; food service; medical care; transportation;
land and building purchases; utilities; and building construction, renovation, and repair.
Due to the prohibitively high costs associated with the imprisonment of the mentally ill offender population, states have examined
whether mental health courts might be utilized to reduce such costs.
In support of states and local governments, Congress has recently
enacted "America's Law Enforcement and Mental Health Project,"
providing for $10 million annually to states, state courts, local courts,
and governments for up to 100 diversionary mental health court programs. Mental health courts have previously been established in Los
Angeles County, California; Broward County, Florida; and King
County, Washington. Notably, the Florida and Washington courts
have recently reported the successful diversion of nonviolent mentally
disordered offenders from jails and prisons into judicially monitored
mental health treatment programs. These court-supervised treatment
programs have connected offenders to treatment and reduced rates of
criminal recidivism.
OBJECTIVES:
This Bill provides that grants be awarded to counties on a competitive basis for five years for programs that establish mental health
courts for the purpose of the diversion of mentally disabled offenders
from the criminal justice system into treatment programs. The mental
health court shall provide a unified point of contact whereby the court
450
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may order diagnosis, treatment, and ancillary services for a mentally
disabled offender who meets the statutory criteria that follow: (1) the
presence of a diagnosed mental disorder that was a substantial contributory factor in the commission of the alleged offense, arrest or
conviction, or during the person's confinement, (2) the defendant is
not currently charged with an offense involving the infliction or
attempt to inflict substantial physical harm to another, (3) a physician
provides a written statement that the defendant would benefit from
treatment, (4) the defendant is willing to enroll in a treatment plan on
a voluntary basis, and (5) the defendant expressly agrees to waive the
right to a speedy trial. Defendants who voluntarily participate in
outpatient or inpatient mental health treatment and successfully complete their treatment programs shall be granted either dismissal of
charges or a reduced sentence. Diversion of mentally disabled defendants into treatment serves the interests of justice by ensuring the
defendants' treatment rather than imprisonment, reducing the high
costs of prosecution and incarceration, and enhancing public safety.
Primary objectives of the mental health courts shall include:
1. Appointment of experienced judges and judicial bench officers who possess training in the specialized issues surrounding mental
disabilities, including treatment and rehabilitation.
2. Facilitation of coordination among law enforcement, criminal
justice, and mental health resources through a unified court system.
3. Development of law enforcement and correctional facility
programs utilizing assigned mental health professionals for the timely
identification and diagnosis of putative mentally disordered individuals who may qualify for diversionary programs into treatment
through diversion.
4. Specification of the court staff s level of expertise in determining a defendant's amenability to treatment.
5. Specification of the statutory criteria for acceptance of qualified mentally disabled individuals.
6. Increased judicial efficiency and economy through centralization of case management within the unified mental health court. This
court shall monitor and coordinate all decision-making regarding the
implementation of a mentally disordered defendant's mental health
treatment program, and social and legal services including, but not
limited to, the following activities: provision of psychiatric evaluation
and medication treatment; tracking of medication conflicts and side
effects; provision of defense counsel; monitoring of correctional facility
seclusion and restraint; participation in individual and group therapy;
provision of medical, nursing, and dental care; access to life skills and
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other services including education, vocational training, housing, and
job placement; and assessment of the defendant's treatment program
violations or compliance.
DEFINITIONS:
In this Act, a "mentally disordered defendant" or "mentally
disordered offender"' ' is a presumptively qualified individual who:
1(A). has been currently diagnosed by a licensed board-certified
psychiatrist or psychologist42 ° as having a mental illness,42' or
co-existing mental illness and substance abuse disorders,422 and
has either been accused or convicted of the commission of a
criminal offense in which the mental disorder plays a substantial
part; or
1(B). has currently exhibited signs of mental illness or coexisting mental illness and substance abuse during the commission of the alleged offense, arrest, confinement, or judicial
proceedings; and
2. is deemed to be eligible for diversion consideration by a
judicial officer in the mental health court or by a judicial officer
in another court with jurisdiction over the defendant.
In this Act, "diversion" is defined as the voluntary4 23 transfer of a
qualified mentally disordered defendant from the criminal justice
system into a treatment program with the objectives of treatment,
rehabilitation, crime reduction, and penal cost reduction. In this Act,
the "treatment program"4 24 is a program, regularly monitored by the
mental health court, in which a mentally disordered defendant in a
419. Some advocates prefer some variation of the phrase, "persons with mental disability,"
which has fewer undesirable connotations than terms such as "mentally ill or disabled" or
"offender." While Protection & Advocacy, Inc., the U.S. Department of Justice, and others
have promoted changes in terminology, wide acceptance of such phrases has not yet occurred.
420. The requirement for use of DSM-IV criteria as the basis of professional diagnosis of
mental disorders promotes the uniformity of diagnostic criteria. Judges, however, should be
aware that these criteria may have limitations.
421. States may wish to address mental retardation in this statute or in other statutes.
422. Defendants who are diagnosed with co-existing mental illnesses and substance abuse
disorders raise special considerations for the court that should be considered in any implementation of an appropriate treatment program.
423. Once the court determines that a mentally disordered defendant qualifies for diversion, the defendant shall retain the voluntary choice of diversion into a treatment program or,
alternatively, continued prosecution or sentencing for the charged crime. This requirement of
"voluntariness" retains constitutional safeguards absent in some court-mandated treatment
programs.
424. Jurisdictions may wish to provide for statutory provisions that permit the judge to
approve interdisciplinary individualized treatment programs for persons suffering from mental
retardation, mental disorders, or co-existing mental illness and substance abuse disorders.
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nonpenal environment is provided with individualized services including, but not limited to, psychiatric treatment; medical, nursing, and
dental care; vocational training and job placement; and housing.
CRITERIA:
The mental health court shall meet the following criteria:
1. Applications for a grant award under this part shall:
(1) set forth a detailed strategy and implementation plan for the
mental health court(s);
(2) certify that all affected agencies and departments have been
consulted for the purpose of facilitating coordination among these
agencies and departments when the mental health court is established
to provide mentally disordered defendants diverted into the court's
program with necessary treatment;
(3) ensure that all defendants who appear before the court,
includeing, but not limited to, first time offenders without a history of
mental illness, shall receive a mental health evaluation by a licensed
psychiatrist or other qualified mental health professional;
(4) certify that judges and/or bench officers shall periodically
monitor and evaluate treatment program objectives for and achieved
results of mentally disordered defendants in periodic reviews;
(5) demonstrate the ability to obtain independent funding from
federal, state, local, and private funding sources and the predicted
financial ability to independently sustain the mental health court
program in the future in the absence of continued support from this
pilot state program;
(6) set forth the objectives and evaluation methodology to be
used to objectively assess the effectiveness of the mental health court
in achieving its stated goals;
(7) include an outcome assessment by the Evaluation Committee
of the diversion program that measures the success of treatment, the
rate of recidivism by participants, the cost of incarceration compared
to the cost of treatment, and the annual cost savings resulting from the
mental health court diversion program;
(8) ensure that the mental health court's computerized information systems will be developed or modified to facilitate compliance
with the mandated treatment and to provide a database enabling the
Evaluation Committee to measure outcome parameters; and
(9) maintain qualified confidentiality for purposes of treatment
by ordering court records and treatment records to be sealed and
retained at the mental health court. For outcome study purposes,
participants shall be assigned a number or code to ensure that names
of defendants are never revealed.
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2. The State Diversion Program Committee (hereinafter SDPC)
shall consist of the Chief Justice of the Supreme Court; the Senior
Justice of the state's highest intermediate court; the President Pro
Tern of the Senate, or his or her designee; the Speaker of the Assembly, if applicable, or his or her designee; and the Governor. For the
purpose of awarding grants, the SDPC shall establish criteria for evaluating county plans for the creation of mental health courts. Upon
completing evaluation of county plans, the SDPC shall then award
grants to counties for the establishment of mental health courts. The
SDPC shall consider the following factors in assessing an award of a
grant to a county or local government entity: (1) the number of mentally disordered defendants to be served in a particular county or
locality, (2) the county or locality's demonstrated ability to provide
adequate treatment to defendants accepted into the court's program,
(3) the county or locality's demonstrated capacity to administer the
program, (4) the county or locality's demonstrated computerization
and ability to monitor the evaluation methodologies to determine
effectiveness of the program, (5) demonstrated commitment of local
agencies, departments, and the court to meet therapeutic jurisprudential objectives, and (6) the county or locality's demonstrated financial commitment by provision of matching county or local funds for
support of the court.
3. The mental health court shall be provided staff including, but
not limited to, a presiding judge, a law enforcement officer, a staff
attorney, a clerk, a court reporter, and administrative staff members.
Prosecutors and public defenders shall be assigned to the court. The
court staff shall also include the following personnel in a "Treatment
Program Group"42S: a licensed psychiatrist, a clinical or psychiatric
social worker, a psychologist, a substance abuse counselor, a probation
officer, and a caseworker. The Treatment Program Group shall be
responsible for writing individualized treatment programs for each
qualifying defendant. The court shall designate one Treatment Program Group to assume duties of the "Service Coordinator." The Service Coordinator4 26 shall be responsible for coordinating treatment and
other services, reporting regularly to the court, and ensuring that
public or private service providers also report regularly to the court.
4. Judges assigned to the mental health court shall, as a condition of assignment, complete a course of study that includes psychi425. Mental health personnel may be state, county, or local mental health professionals.
426. The Service Coordinator's role is critical in facilitating coordination between the criminal justice system and service providers to ensure that the individualized treatment programs are
written and provided to defendants in a timely manner.
Seattle University Law Review
[Vol. 24:373
atric diagnoses, modalities of treatment, and communication skills in
relation to persons suffering from severe mental disorders. Mental
health court judges may appoint subordinate bench officers who shall
participate in the same training. The mental health court judges also
shall designate the title, duties, and compensation of court administrative personnel consistent with budgetary requirements. The county or
local treasurer shall pay salaries, compensation and expenses for all
mental health court employees and activities from money appropriated
for the operation of the mental health court.
5. The court shall promote diversion of qualified mentally disordered offenders from the criminal justice system into adequately
staffed and equipped hospitals or other community treatment facilities. Referrals of potentially eligible mentally disordered defendants to
the mental health court shall be made by sources including, but not
limited to, the following agencies, departments, or entities: law
enforcement, correctional facilities, the district attorney, the public
defender, probation officers, or other courts. The mental health court
shall encourage law enforcement to conduct training programs to
ensure that officers are trained in the appropriate handling of persons
who may exhibit symptoms of mental disorders. Family members or
their attorneys may refer mentally disordered defendants that have
been accused or convicted of a crime to the mental health court to
address issues including conservatorship or guardianship. Eligible
defendants must voluntarily consent to the referral prior to the
transfer of their case to the mental health court.
6. Nothing contained in this Act shall prohibit the mental health
court from considering any mentally disordered offender whose case is
pending in another court as potentially eligible for participation in the
mental health court's diversion program at any time prior to sentencing. Any judge from another court may request evaluation of a potentially transferable defendant in a criminal case by the mental health
court to determine if the defendant qualifies for diversion into
treatment as a mentally disordered defendant. The mental health
court shall evaluate these potentially transferable defendants through
investigation and hearings to determine eligibility for the court's treatment program. The mental health court shall make the final determination of eligibility of a defendant for diversion. A defendant who
meets the statutory requirements for diversion and voluntarily chooses
to participate in the court's treatment program shall be entitled to such
diversion. If the qualified transferred defendant accepts diversion into
the court's treatment program, the case shall continue to be heard in
the mental health court until the defendant is either rejected or com-
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pletes the treatment program. If a defendant either does not qualify
for diversion or refuses to participate in diversion, the defendant shall
be returned to the referring court for continuation of criminal prosecution, speedy trial, and acquittal or sentencing..
7. The court will not try any person while that person is mentally incompetent. If the judge possesses evidence supporting a doubt
regarding the mental competence of the defendant, the judge shall
state that doubt on the record and inquire of counsel for the defendant
whether, in the opinion of counsel, the defendant is mentally competent. At the request of the defendant, or counsel for the defendant, or
upon the court's own motion, the court shall recess the criminal proceedings for a reasonable time necessary to permit counsel to confer
with the defendant and to form an opinion regarding the defendant's
mental competence. If counsel states to the court that he or she
believes the defendant is or may be mentally incompetent, the court
shall order that the defendant's mental competence is to be determined
in a court hearing. The court may also order a hearing on the issue of
mental competence on its own motion. The court shall appoint an
attorney for defendants who lack representation. If counsel informs
the court that it is the counsel's belief that the defendant is or may be
mentally incompetent, the court shall assign one or more licensed
psychiatrists or psychologists to evaluate the mental competence of the
defendant, and the court shall order a hearing, as a civil proceeding, to
be scheduled to determine the defendant's mental competence. When
an order for a hearing into the present mental competence of the
defendant has been issued, criminal prosecution shall be suspended
until the hearing is concluded and the defendant is found competent.
The question of mental competence may be determined either by a
trial by the court without a jury, or with a jury upon demand by either
prosecution or defense. The judge may declare a defendant mentally
incompetent if, as a result of mental disorder or developmental
disability, the defendant is unable to understand the nature or purpose
of the criminal proceeding against him or to assist defense counsel in a
rational manner. In a jury trial, the jury shall return a verdict either
that the defendant is or is not mentally competent to stand trial. A
defendant found to be mentally incompetent cannot be tried or sentenced to punishment for a charge or offense. If the court or jury finds
that the defendant is mentally incompetent, unless the court determines that the defendant has recovered fully, the court shall order that
the community treatment program director or licensed forensic psychiatrist evaluate the defendant and submit to the court a written
recommendation within two weeks of the court hearing or jury trial
Seattle University Law Review
[Vol. 24:373
regarding the placement of the defendant in outpatient, inpatient,
hospital, or alternative treatment facilities consistent with the standard
set forth in section 10.427
8. When the judge has substantial evidence to support a belief
that a person is incompetent to stand trial, the court must declare that
a doubt exists. Under this circumstance, the court must assign experts
and set trial to determine competence in a civil proceeding. Counsel
for the defense or the prosecutor may file a petition to the state court
of appeals for judicial review.
9. The mental health court judge shall make the final determination of a defendant's eligibility for diversion at a scheduled hearing.
The judge shall also determine whether a mentally disordered defendant may be dually diagnosed as possessing a mental illness and a
substance abuse addiction, qualifying the defendant for admission into
a drug treatment plan that addresses both. The judge shall determine
whether a defendant qualifies for diversion by consideration of the
following: (1) medical testimony regarding the defendant's current
mental and physical condition, including previous medical history,
treatment for prior illnesses, and substance abuse; and the judge may
42
consider if applicable; (2) employment and military service records; 1
(3) educational background; (4) motivation to comply with treatment
objectives; (5) voluntary consent to the treatment program; and (6)
waiver of the right to a speedy trial.429 At this hearing, the court shall
order that the defendant be treated for mental disorder in the least
restrictive, most appropriate treatment environment. The judge shall
place the defendant in a public or private outpatient facility, inpatient
facility, or state hospital, depending on the severity of the mental incapacity or state of mind. Either the defendant, his attorney, or the
district attorney may petition for a hearing or an appeal to challenge
the order of commitment to a treatment facility. The court shall
provide copies of documents to the treatment facility including the
commitment order with specification of charges, the maximum term
of commitment, the psychiatric and medical examination or evaluation
reports, the criminal history and arrest records from law enforcement,
and the community program director's placement recommendation
report. The court shall schedule periodic hearings to evaluate the
427. Under California's Lanterman-Petris-Short (LPS) Act, a defendant with a mental
disorder who is found to be gravely disabled or, alternatively, dangerous to himself or others can
be detained for 72 hours or up to 14 days for treatment.
428. Lack of employment should not disqualify an otherwise eligible defendant for diversion.
429. If sentencing is to be deferred, the defendant shall voluntarily waive his or her right to
speedy sentencing.
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progress of the defendant in the treatment plan. The medical director
of the facility shall provide a written progress report concerning the
defendant to the court, district attorney, and prosecutor two weeks
prior to the date of the scheduled hearing.
10. The judge shall appoint the Service Coordinator and Treatment Program Group to conduct an investigation, to be started after
the defendant's initial hearing and before the final hearing, for determination of eligibility for the court's treatment diversion program.43 °
The results of the investigation and written recommendations shall be
sent to the judge, defendant, assigned public defender or counsel, and
district attorney for review at least one week prior to the next scheduled hearing. After review of the investigation by the district attorney,
public defender, and defendant, a written plea agreement containing a
recommended treatment plan may be negotiated.
11. The hearing to determine eligibility for participation in the
court's diversion program shall be set no more than three weeks from
the date of the initial hearing, unless extended by the court. Participation by qualified mentally disordered defendants in the mental health
court diversion program is entirely voluntary.4 3' However, to obtain
diversion, the defendant shall agree to enroll in the treatment program
ordered by the court and to cooperate in examination by the court's
designated licensed psychiatrists, psychologists, social workers, and/or
other treatment staff members. If the judge determines that the
defendant is not qualified for participation in the diversion program,
the judge shall state on the record the reasons for that decision. The
mental health court shall adopt court rules consistent with the objectives of this Act.
12. Qualified mentally disordered defendants shall possess the
right to be represented by counsel in any court hearings and proceedings at all stages of criminal prosecution pertaining to the mental
health court's diversion program. The Public Defender's Office shall
select counsel for defendants, or alternatively, in the absence of an
available public defender, the judge may appoint independent counsel
to represent mentally disordered defendants, paid from county funds.
However, the defendant retains the right to knowingly waive the right
to counsel at any time during court proceedings.
The judge shall state on the record that if the qualified defendant
fulfills the obligations of the agreement to complete treatment (herein430. The Service Coordinator and Treatment Program Group should work closely with
community resources to ensure that the defendant's treatment program is provided in the least
restrictive environment available.
431. Civil liberties groups such as Protection & Advocacy, Inc., support expanding voluntary choices for mentally disabled defendants in the courts and criminal justice system.
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after, "treatment agreement"), then criminal charges may be dismissed
and the prosecution set aside; or, if the defendant has been sentenced
after a guilty plea or trial, then successful completion of the courtmandated treatment program may result in either immediate release of
the defendant or probation with ultimate release to the community.
13. Once a qualified defendant is initially transferred to the
mental health court and the defendant agrees to participate in the
court's treatment program, the defendant shall voluntarily and unambiguously waive the right to a speedy trial and the right to a preliminary hearing, if applicable, to be considered a candidate for the court's
diversion program. The defendant shall sign an agreement with the
court that he or she will comply with the terms and conditions of the
court's treatment plan. However, the court must terminate diversion
and reinstate the defendant's right to a speedy trial upon written or
oral motion. The court may order defendants who fail to adhere to
reasonable conditions of the treatment program to return to correctional facility custody for reincarceration.
14. Clear statements shall be included in the court's treatment
program that should the defendant (1) fail to comply with the terms of
the agreement, or (2) be arrested and charged with a new offense, or
(3) be convicted of any felony offense, the court may, after notice and
a hearing, terminate the defendant's participation in the diversion
program. For defendants terminated from diversion, the court may
order that criminal proceedings be resumed.
15. The court may request the assistance of the state and local
Departments of Mental Health, hospitals, law enforcement, community treatment facilities, public and private service providers, and
correctional facilities to advance the court's objectives in obtaining
treatment for qualified mentally disordered defendants. All treatment
service providers shall be certified annually by the Department of
Mental Health by evaluations of performance in accordance with written standards promulgated and published by the Department. The
court shall periodically review these standards to ensure that quality
treatment programs are available to mentally disordered defendants.
16. The court is granted the authority to use all reasonable
means necessary to fulfill the objectives of this Act. Once a qualified
defendant has entered treatment, the court shall require the treatment
program director to submit periodic progress reports to the court.
Hearings regarding the defendant's progress should be scheduled to
occur at least quarterly,432 and the court may require the defendant to
432. Different policy decisions may govern the frequency of hearings for individuals
charged or convicted of either misdemeanor or felony crimes.
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appear. At progress hearings, the judge shall review the defendant's
needs, progress, treatment plan, and medical care. At that time, the
judge shall consider motions for modification of the treatment program. The hearing may also be scheduled on the court's own motion
or if the defendant, defense attorney, district attorney, or treatment
provider believe that modification of the treatment program would be
beneficial to the psychiatric, medical, or other needs of the defendant,
or to the security needs of the community.
17. For nonviolent offenses, the judge shall consider relapses
and restarts in the treatment program as predicted integral components of the treatment, recovery, and rehabilitation process of mentally
disordered defendants. When relapse occurs, the judge may monitor
the defendant's compliance with the treatment program either by
providing incentives to the defendant or by ordering progressively
increasing sanctions for noncompliance rather than by removing the
defendant from the mental health diversion program.
18. If the judge has a reasonable belief that removal from the
diversion program is required, notice of the termination hearing shall
be given to the defendant, the defense attorney, and the district
attorney. If the judge finds that the defendant is currently unable to
comply with the terms and conditions of the treatment plan and his or
her agreement, the defendant shall be terminated from the diversion
program and returned to the criminal justice system for resumption of
criminal proceedings, which may include either a trial, an imposition
of sentence for the original offense, or return to custody if a sentence
was previously imposed.
19. Upon successful completion of the treatment program by a
defendant, the judge shall consider dismissal of the defendant's
charges and release, or, alternatively, a grant of probation to the
defendant.433
20. The judge may. consider the following factors in determining
whether to grant probation to or impose a sentence upon a mentally
disordered defendant in the interests of justice and for the mutual
benefit of the community and the defendant: (a) the nature and circumstances of the crime charged, (b) the length of time the defendant
has been in treatment, (c) the current mental and physical condition of
the defendant, (d) whether it is probable that the defendant will
benefit from continued treatment and comply with reasonable terms of
probation, (e) whether the proposed probation and treatment program
433. Statutory provisions may further define the conditions under which the judge would
order dismissal, or alternatively, conditional release or probation, with a consideration of public
policies balancing the individual's liberty interests with the safety interests of the community.
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would meet the therapeutic needs of the defendant, (f) whether the
defendant would be able to complete probation successfully, and (g)
any other relevant circumstances.434
21. If the judge determines that a defendant is eligible for enrollment in the mental health court's probation program, the court shall
accept the defendant's guilty plea if required, suspend or defer the
imposition of a sentence, and place the defendant in the court's probation program subject to the defendant's agreement with its terms and
conditions. If the judge determines that the defendant is not qualified
for inclusion in the probation program, the judge shall state the reasons for that determination on the record.
22. The judge shall assign the eligible probationer to a licensed
community treatment program. If sufficient community treatment
services are not available, the judge shall order the probationer to be
temporarily housed in the least restrictive environment available for
treatment and the judge shall order that the defendant's treatment be
paid for using public funds until such time as community treatment
facilities become available. The judge shall also order treatment providers to assist the probationer in obtaining federal and state governmental financial benefits, including, but not limited to, Social Security
Disability Insurance, MediCare, General Relief, or other assistance
prior to the starting date of the probationer's program if necessary.
23. Upon a probationer's successful completion of the mental
health court probation program, the judge may either vacate the judgment of conviction and dismiss the criminal proceedings against the
probationer, or, alternatively, discharge the defendant from probation
into a conditional release program. The judge may order dismissal or
discharge if the criminal offense was for a misdemeanor or first felony
offense. However, if the offender has one or more prior felony convictions, the judge may provide a disposition order as specified in the
written plea agreement. Dismissal and discharge under this provision
shall have the same effect as acquittal, except that the conviction is
admissible as evidence and may be considered in sentencing if the
defendant has a subsequent conviction. After dismissal or discharge,
the defendant's records shall not be used by any employer or potential
employer for the purposes of denying the defendant employment or
withholding employee benefits from the defendant.
434. Some jurisdictions may wish to add the following phrase: "The mentally disordered
defendant will not be required to enter a guilty plea to a criminal offense in order to be eligible
for this probation program, unless the judge is compelled to impose this guilty plea requirement
upon a defendant in the interests of justice."
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24. The mental health court shall develop criteria for the eligibility of mentally disordered offenders for its conditional release programs. Such programs shall include an aftercare plan developed in
conjunction with the mentally disordered defendant, medical personnel, the county mental health department, and community mental
health service providers. This aftercare plan shall provide for continued community treatment, provision of governmental benefits (SSI,
SSDI, Medicare, General Relief, food stamps), housing placement, life
skills training, educational and vocational training, employment
counseling and placement, provision of health care, substance abuse
treatment where co-existing disorders exist, a relapse prevention program, and other services consistent with facilitating each defendant's
rehabilitation objectives.
25. The mental health court shall develop and oversee a program
for training court staff, district attorneys, public defenders, correctional facility staff members, medical staff, and law enforcement
personnel consistent with the objectives of the court in facilitating the
appropriate adjudication and/or treatment of mentally disordered persons. The mental health court shall direct and supervise all aspects of
the development of a training manual for the purpose of promoting
and educating staff in court procedures, rules, and protocols consistent
with underlying therapeutic jurisprudence and preventative law principles.435 The judge shall delegate writing and revision of sections or
chapters of this training manual to appropriate agencies and departments. Each agency or department shall be responsible for providing
funds for writing and revision of its delegated portions of this training
manual.
26. One designated mental health court judge in the state shall
supervise the promulgation of the rules, procedures, and forms necessary to promote uniformity throughout the state. All mental health
court judges may issue summonses, warrants, citations, subpoenas,
and other writs to a bailiff, sheriff, marshal, police officer, or other law
enforcement officer to ensure that court objectives stated herein are
met by correctional facilities, hospitals, community treatment facilities, law enforcement, or other departments, agencies, or entities.
27. An independent Evaluation Committee shall be created for
the purpose of assessing the impact of the mental health courts on
judicial efficiency and economy in processing cases involving mentally
disordered defendants, correctional facility costs, promoting the efficacy of timely diagnosis and treatment, and reducing rates of criminal
435. Therapeutic jurisprudence and preventative law concepts are presented in Part II of
this Article.
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recidivism. Members of the Evaluation Committee shall include the
mental health court judge, a member of the State Legislature, a public
defender, a district attorney, a State Mental Health Department representative, a representative of the local mental health department, a law
enforcement or correctional facility official, a mental health law
scholar, a board certified psychiatrist, a licensed clinical psychologist,
a consumer of mental health services, a Protection & Advocacy attorney,436 and a family member of an individual with mental disability.
The mental health court judge shall preside over the Evaluation Committee meetings and each member shall receive one vote.
a. Selection of the Evaluation Committee shall be by the Legislature in a procedure whereby the Majority and Minority Leaders of the
Senate and Assembly respectively shall each select at least two (2)
Committee members and the Governor shall select remaining Committee members. The order of selection shall be as follows: (1) the
Senate Majority Leader, (2) the Senate Minority Leader, (3) the
Assembly Majority Leader, (4) the Assembly Minority Leader, (5) the
Governor. No more than half of the Committee members may be of
the same political party.
b. No later than 18 months after the date of enactment of this
section, the Evaluation Committee shall issue a preliminary report to
the Legislature evaluating the effectiveness of the newly created mental health courts in diverting mentally disordered defendants into
treatment facilities, making recommendations for mental health court
reform and the establishment of similar mental health specialty courts
in other jurisdictions, voicing suggestions for the early identification of
potentially qualified defendants in correctional institution settings who
may be eligible for diversion, projecting cost savings to be achieved by
establishment of this court, noting additional resources needed, and
proposing legislation. After the initial report, the Committee shall
issue annual reports to the Legislature in June of each subsequent calendar year. The Evaluation Committee shall present its findings and
recommendations to the Legislature within three (3) months of the
issuance date of the initial report and each subsequent annual report.
FUNDING:
The sum of
dollars ($
) per year for
years is hereby appropriated from the State General Fund for the
purpose establishing pilot mental health courts.
-
436. Protection & Advocacy, Inc., present in every state, is mandated by federal law to
protect the rights of physically and mentally disabled persons.
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APPENDIX B: ADMINISTRATIVE ORDER CREATING THE
BROWARD COUNTY MENTAL HEALTH COURT SUBDIVISION 437
IN THE CIRCUIT COURT
OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
ADMINISTRATIVE ORDER
NO. VI-97-I-1
IN RE:
CREATION OF A MENTAL HEALTH
COURT SUBDIVISION WITHIN THE
COUNTY CRIMINAL DIVISION
In accordance with the authority vested in the Chief Judge by
Rule 2.050, Florida Rules of Judicial Administration...
WHEREAS, this Circuit has recognized that the creation of
"specialized courts" within other divisions of the Court has enhanced
the expediency, effectiveness and quality of Judicial Administration;
WHEREAS, it is essential that a new strategy be implemented to
isolate and focus upon individuals arrested for misdemeanor offenses
who are mentally ill or mentally retarded in view of the unique nature
of mental illness or mentally retardation, and the need for appropriate
treatment in an environment conducive to wellness and not punishment, as well as the continuing necessity to insure the protection of the
public, and
WHEREAS, there is a recognized need to treat defendants qualified to participate in the Court before a specialized trained Judge who
possesses a unique understanding and ability to expeditiously and efficiently move people from an overcrowded jail system into the mental
health system, without compromising the safety of the public, and,
WHEREAS, the rapidly increasing number of misdemeanor
cases involving mentally ill or mentally retarded defendants has contributed to congesting and overburdening of the court dockets in the
county court criminal division, as well as a jail overcrowding, and,
WHEREAS, a centralized Mental Health program would increase the efficiency of the criminal court system in this circuit, and
WHEREAS, a continuing shrinkage of mental health care
resources necessitates that such resources be centralized into a system,
437. This Administrative Order was graciously sent from Judge Ginger Lerner-Wren,
Broward County Courthouse, to the Author on May 19, 2000.
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before specialized personnel, thereby making them more accessible,
and
WHEREAS, it is necessary that this circuit utilize available community resources and support, to establish an individualized judicial
process that will, where appropriate, tailor treatment rather than punishment for the mentally ill and mentally retarded misdemeanant,
IT IS NOW THEREFORE;
ORDERED that:
Effective June 16, 1997, a part time Mental Health Subdivision
shall be operational within the County Court Criminal Division to
hear cases involving defendants arrested for misdemeanors who are
suffering from mental illness or are mentally retarded, with the
exception of those charged with Domestic Violence and Driving
Under the Influence. Defendant[s] ... charged with Battery, a violent
misdemeanor, may be admitted with the victim's consent. Defendant[s] ... charged with violent misdemeanor offenses which occur at
mental health treatment facilities shall be assigned to the Mental
Health Specialty Judge.
The Clerk of the Court shall assign or transfer all nonviolent
misdemeanor cases, including traffic criminal[,] who preliminarily
qualify for admission to the program. The defendants will be preliminarily qualified at any point in the proceedings, if they previously or
currently have been diagnosed by a mental health expert as suffering
from mental illness or mental retardation during arrest or confinement
or before any court. Motions for transfer into the program may be
made sua sponte by any court or by the Defense or the State accompanied by documentation or testimony in support thereof and will be
heard by the Specialty Judge, who shall make the final determination
of a defendant's eligibility. Any motion to transfer a defendant into
the program, unless specifically objected to by defense counsel, shall
be deemed a waiver of the defendant's right to a speedy trial and
formal discovery, other than the providing of documentation relating
to defendant's mental health status and all available statements and
police reports. If the assigned Judge determines that a defendant is
mentally ill or mentally retarded, she or he is eligible for the program.
If a defendant is not mentally ill or mentally retarded, she or he is not
eligible for the program. If a defendant is determined to be ineligible
for the program, the case shall be transferred back to the original
division or, if it had not been previously assigned to another division,
randomly assigned by the Clerk of the Court to a County Court Criminal Division and the defendant's right to a speedy trial and formal
discovery may be reinstated upon a written demand. If a defendant is
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465
eligible for the program, all the defendant's misdemeanor cases,
including violations of misdemeanor probation, shall be consolidated
and transferred to the assigned mental health Judge. Once a defendant is accepted into the program and it is determined that the case will
be set for trial within said Court, the defendant's right to a speedy trial
may be reinstated upon written demand.
IT IS FURTHERMORE ORDERED that the Sheriff of Broward County will make all reasonable efforts to secure the attendance of
all Defendants whose cases are to be heard before the Court, unless
effectuating such will case a danger to the public or the Defendants
themselves.
IT IS FURTHERMORE ORDERED that Judge Ginger
Lerner-Wren is hereby designated as the Judge assigned to this special
unit. In that capacity, Judge Lerner-Wren will be responsible for
administering the program and coordinating the role of the judiciary
with the functions of the Department of Children and Family
Services, Henderson Clinic, Nova Southeaster Outpatient Care Clinic,
private mental health providers, County Court Probation, and Pretrial
Services of the Broward Sheriffs Office. Judge Lerner-Wren shall be
responsible for magistrating all defendants preliminarily determined to
be eligible for the program who have not magistrated previously. The
holding of said magistrate hearing shall constitute notice to the State
and Defense, and the above mental health programs, providers and
services to obtain all necessary criminal history and mental health history and input from pertinent victims and witnesses. Judge LernerWren will still maintain her caseload in her regular County Court
Division while serving as Judge of the Mental Health Subdivision.
IT IS FURTHERMORE ORDERED that Ginger LernerWren is hereby appointed as an acting Circuit Court Judge in all matters relating to Chapters 393, 394, and 397, of the Florida Statutes. In
the absence of Judge Lerner-Wren, the Honorable Mark A. Speiser,
Circuit Judge, shall serve as her alternate, to enter orders which are
necessary, fit and proper, and/or as required by law.
DONE AND ORDERED in Chambers at Fort Lauderdale,
Broward County, Florida on this the 22nd day of May, 1997.
DALE ROSS, CHIEF JUDGE (Cty. Disk #30)